PEOPLE v. CRITTENDEN (2020)

MEMORANDUM AND ORDER

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

Memorandum:  Defendant appeals from a judgment convicting him upon his plea of guilty of attempted robbery in the first degree (Penal Law §§ 110.00, 160.15[4]). We affirm.

We reject defendant's contention that Supreme Court erred in refusing to suppress the showup identification of him by the victim.  “Showup identifications are disfavored, since they are suggestive by their very nature” (People v. Ortiz, 90 N.Y.2d 533, 537, 664 N.Y.S.2d 243, 686 N.E.2d 1337 [1997]).  “Nevertheless, prompt showup identifications which are conducted in close geographic and temporal proximity to the crime are not presumptively infirm, and in fact have generally been allowed” (id. [internal quotation marks omitted] ).  Here, the People met their burden of demonstrating that the showup was reasonable under the circumstances (see id.) inasmuch as the showup occurred at the scene of the incident and less than two hours after the incident.  Contrary to defendant's contention, “a two-hour interval between the crime and the showup is [not] per se unacceptable” (People v. Howard, 22 N.Y.3d 388, 402, 981 N.Y.S.2d 310, 4 N.E.3d 320 [2013];  see People v. Johnson, 167 A.D.3d 1512, 1513, 89 N.Y.S.3d 505 [4th Dept. 2018], lv denied 33 N.Y.3d 949, 100 N.Y.S.3d 165, 123 N.E.3d 824 [2019]).  Moreover, the showup was not rendered unduly suggestive by the fact that, at the time of the identification, defendant's hands were cuffed behind his back and he was standing next to a plainclothes officer or by the fact that the witness may have heard a radio transmission stating that the police had a suspect in custody (see People v. Nance, 132 A.D.3d 1389, 1390, 17 N.Y.S.3d 261 [4th Dept. 2015], lv denied 26 N.Y.3d 1091, 23 N.Y.S.3d 647, 44 N.E.3d 945 [2015];  People v. Sanchez, 66 A.D.3d 420, 421, 886 N.Y.S.2d 389 [1st Dept. 2009], lv denied 13 N.Y.3d 862, 891 N.Y.S.2d 696, 920 N.E.2d 101 [2009];  People v. Ross, 305 A.D.2d 1073, 1074, 758 N.Y.S.2d 897 [4th Dept. 2003], lv denied 1 N.Y.3d 579, 775 N.Y.S.2d 795, 807 N.E.2d 908 [2003]).  Thus, the court properly refused to suppress the showup identification (see generally People v. Bartlett, 137 A.D.3d 806, 806–807, 27 N.Y.S.3d 163 [2d Dept. 2016], lv denied 27 N.Y.3d 1066, 38 N.Y.S.3d 836, 60 N.E.3d 1202 [2016]).