PEOPLE v. PEREZ (2019)

Judgment, Supreme Court, New York County (Richard D. Carruthers, J. at suppression hearing; Juan M. Merchan, J. at jury trial and sentencing), rendered August 31, 2015, convicting defendant of seven counts of petit larceny, and sentencing him to an aggregate term of two years, unanimously affirmed.

The court properly denied defendant's suppression motion.  Although there was a substantial gap between the larceny observed by the identifying witness and the showup identification, which occurred shortly after the witness saw defendant again, exigent circumstances justified the showup because the officers, who were in the midst of an undercover operation, needed to know whether they had apprehended the right person or whether they should keep looking for other suspects (see People v. Howard, 22 N.Y.3d 388, 402, 981 N.Y.S.2d 310, 4 N.E.3d 320 [2013] ).  Even assuming the police already had probable cause to arrest defendant, that did not render the showup improper in these circumstances (id. at 403, 981 N.Y.S.2d 310, 4 N.E.3d 320).  The allegedly suggestive overall effect of the manner in which the showup was conducted, and an officer's comments to the witness, was not significantly greater than what is inherent in a showup itself (see e.g. People v. Gatling, 38 A.D.3d 239, 240, 831 N.Y.S.2d 157 [1st Dept. 2007], lv denied 9 N.Y.3d 865, 840 N.Y.S.2d 894, 872 N.E.2d 1200 [2007] ).

In any event, regardless of the showup, we find no basis for reversal (see People v. Adams, 53 N.Y.2d 241, 252, 440 N.Y.S.2d 902, 423 N.E.2d 379 [1981] ), because the record also supports the hearing court's finding that the witness had an independent source for her in-court identification (see People v. Williams, 222 A.D.2d 149, 152–153, 646 N.Y.S.2d 665 [1st Dept. 1996], lv denied 88 N.Y.2d 1072, 651 N.Y.S.2d 416, 674 N.E.2d 346 [1996] ).  The witness, a store loss prevention agent trained to watch the store for shoplifters, had an ample opportunity to observe defendant on surveillance videos and during a face-to-face encounter at the time of a larceny, as well as shortly before the showup.