PEOPLE v. GUY (2008)

Appeal by the defendant from a judgment of the County Court, Suffolk County (Crecca, J.), rendered January 6, 2006, convicting him of attempted robbery in the second degree and criminal possession of a weapon in the third degree, upon his plea of guilty, and imposing sentence.   The appeal brings up for review the denial, after a hearing, of those branches of the defendant's omnibus motion which were to suppress identification testimony and his written statement to law enforcement officials.

ORDERED that the judgment is affirmed.

Minutes after an unsuccessful attempt to forcibly steal money from a store in Commack, the defendant was arrested in the nearby hamlet of Hauppauge and was brought back by the police to the scene of the crime for a showup identification, which took place approximately 51 minutes after the crime had been reported.   The defendant was made to stand near the rear of a marked police vehicle, surrounded by several uniformed and plainclothes police officers, and was positioned in such manner as to obscure the fact that he was wearing handcuffs.   The complainant then identified him as the would-be robber.   The County Court correctly found that the People met their initial burden of establishing that the showup was reasonable under the circumstances and not unduly suggestive (see People v. Ortiz, 90 N.Y.2d 533, 537, 664 N.Y.S.2d 243, 686 N.E.2d 1337;  People v. Ramos, 34 A.D.3d 1363, 824 N.Y.S.2d 508;  People v. Rodgers, 6 A.D.3d 464, 465, 774 N.Y.S.2d 349;  People v. Davis, 256 A.D.2d 49, 683 N.Y.S.2d 2;  People v. Yearwood, 197 A.D.2d 554, 602 N.Y.S.2d 206;  People v. Brooks, 125 A.D.2d 481, 482, 509 N.Y.S.2d 578;  cf. People v. Johnson, 81 N.Y.2d 828, 831, 595 N.Y.S.2d 385, 611 N.E.2d 286;  People v. James, 218 A.D.2d 709, 710, 630 N.Y.S.2d 368;  People v. Rivera, 210 A.D.2d 895, 896, 620 N.Y.S.2d 652;  People v. Walker, 198 A.D.2d 826, 827-828, 604 N.Y.S.2d 403), and the defendant failed to carry his ultimate burden of proving that the procedure was unduly suggestive (see People v. Ortiz, 90 N.Y.2d at 533, 664 N.Y.S.2d 243, 686 N.E.2d 1337).   Thus, suppression of the identification testimony was properly denied.

Moreover, contrary to the defendant's contention, the People also met their burden of proving, beyond a reasonable doubt, that his written statement to law enforcement officials was voluntary and, therefore, admissible (see People v. Mateo, 2 N.Y.3d 383, 413-414, 779 N.Y.S.2d 399, 811 N.E.2d 1053, cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828;  People v. Huntley, 15 N.Y.2d 72, 78, 255 N.Y.S.2d 838, 204 N.E.2d 179).  “[M]uch weight must be accorded to the determination of the suppression court with its peculiar advantages of having seen and heard the witnesses” (People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380;  see People v. Wheeler, 2 N.Y.3d 370, 374, 779 N.Y.S.2d 164, 811 N.E.2d 531;  People v. Stafford, 39 A.D.3d 774, 776, 834 N.Y.S.2d 301).   In this case, the hearing court's determination was supported by the record.

The defendant's remaining contention is without merit.