PEOPLE v. STONEHAM (2008)

 Defendant appeals from a judgment convicting him following a jury trial of robbery in the first degree (Penal Law § 160.15 [3] ) and criminal possession of a weapon in the third degree (§ 265.02[1] ).   Contrary to the contention of defendant, County Court (Peter L. Broderick, Sr., J.) properly determined that the People established defendant's competency to stand trial by a preponderance of the evidence (see People v. Aponte, 34 A.D.3d 298, 823 N.Y.S.2d 406, lv. denied 8 N.Y.3d 843, 830 N.Y.S.2d 702, 862 N.E.2d 794;  People v. Garrasi, 302 A.D.2d 981, 982, 754 N.Y.S.2d 799, lv. denied 100 N.Y.2d 538, 763 N.Y.S.2d 4, 793 N.E.2d 418;  see generally People v. Mendez, 1 N.Y.3d 15, 19-20, 769 N.Y.S.2d 162, 801 N.E.2d 382).   Although conflicting testimony was presented at the competency hearing, the court's findings are entitled to great deference (see Garrasi, 302 A.D.2d at 982, 754 N.Y.S.2d 799;  People v. Brow, 255 A.D.2d 904, 682 N.Y.S.2d 320), and the opinions of two court-appointed psychiatric experts and the court's own opportunity to observe defendant during the judicial proceedings support the conclusion that defendant had a “ ‘sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding ․ and ․ a rational as well as factual understanding of the proceedings against him’ ” (Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824;  see Mendez, 1 N.Y.3d at 19, 769 N.Y.S.2d 162, 801 N.E.2d 382).

 We reject defendant's further contention that the showup identification procedure was unduly suggestive.   The showup was conducted in geographical and temporal proximity to the crime (see generally People v. Ortiz, 90 N.Y.2d 533, 537, 664 N.Y.S.2d 243, 686 N.E.2d 1337), and it was not rendered unduly suggestive by the fact that defendant was handcuffed and seated in a patrol car when he was identified (see People v. Armstrong, 11 A.D.3d 721, 722, 783 N.Y.S.2d 134, lv. denied 4 N.Y.3d 760, 792 N.Y.S.2d 4, 825 N.E.2d 136).   Finally, there is no support in the record for the contention of defendant that Supreme Court (Richard C. Kloch, Sr., A.J.) acted vindictively in sentencing him (see People v. Lewis, 292 A.D.2d 814, 815, 740 N.Y.S.2d 165, lv. denied 98 N.Y.2d 677, 746 N.Y.S.2d 467, 774 N.E.2d 232;  see generally People v. Pena, 50 N.Y.2d 400, 411-412, 429 N.Y.S.2d 410, 406 N.E.2d 1347, rearg. denied 51 N.Y.2d 770, 432 N.Y.S.2d 1029, 411 N.E.2d 799, cert. denied 449 U.S. 1087, 101 S.Ct. 878, 66 L.Ed.2d 814), and the sentence is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

MEMORANDUM: