PEOPLE v. BERRY (2008)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Blumenfeld, J.), rendered March 6, 2006, convicting him of robbery in the first degree, after a nonjury trial, and imposing sentence.   The appeal brings up for review the denial, after a hearing (Grosso, J.), of that branch of the defendant's omnibus motion which was to suppress identification testimony.

ORDERED that the judgment is affirmed.

 Contrary to the defendant's contention, the hearing court properly denied that branch of his omnibus motion which was to suppress the showup identification made by the complainant near the scene of the crime.   While showup procedures are generally disfavored, they are permissible, even in the absence of exigent circumstances, when they are spatially and temporally proximate to the commission of the crime and not unduly suggestive (see People v. Brisco, 99 N.Y.2d 596, 597, 758 N.Y.S.2d 262, 788 N.E.2d 611;  People v. Ortiz, 90 N.Y.2d 533, 537, 664 N.Y.S.2d 243, 686 N.E.2d 1337;  People v. Duuvon, 77 N.Y.2d 541, 543, 569 N.Y.S.2d 346, 571 N.E.2d 654).   Here, the showup took place less than one hour after the crime and approximately 20 blocks away from the crime scene (see People v. Loo, 14 A.D.3d 716, 789 N.Y.S.2d 247;  People v. Ponce de Leon, 291 A.D.2d 415, 737 N.Y.S.2d 306;  People v. Rodney, 237 A.D.2d 541, 541-542, 655 N.Y.S.2d 577;  People v. Thompson, 215 A.D.2d 604, 605, 627 N.Y.S.2d 697).   The People met their “ ‘initial burden of going forward to establish the reasonableness of the police conduct and the lack of any undue suggestiveness in a pretrial identification procedure’ ” through the testimony of the police officer who received the report of the crime, located the defendant, and secured him during the showup (People v. Ortiz, 90 N.Y.2d at 537, 664 N.Y.S.2d 243, 686 N.E.2d 1337, quoting People v. Chipp, 75 N.Y.2d 327, 335, 553 N.Y.S.2d 72, 552 N.E.2d 608, cert. denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70;  see People v. Mitchell, 185 A.D.2d 249, 250, 585 N.Y.S.2d 783;  People v. Sanchez, 178 A.D.2d 567, 568, 577 N.Y.S.2d 653).

 In turn, the defendant failed to satisfy “the ultimate burden of proving that [the] showup procedure [wa]s unduly suggestive and subject to suppression” (People v. Ortiz, 90 N.Y.2d at 537, 664 N.Y.S.2d 243, 686 N.E.2d 1337).   The defendant's contention that the complainant may have been improperly influenced at the time of the identification is purely speculative (see People v. Dottin, 255 A.D.2d 521, 682 N.Y.S.2d 221).   Furthermore, the fact that the defendant was handcuffed and in the presence of police officers does not render the showup unduly suggestive (see People v. Jay, 41 A.D.3d 615, 838 N.Y.S.2d 596;  People v. Rice, 39 A.D.3d 567, 568, 834 N.Y.S.2d 254;  People v. Gilyard, 32 A.D.3d 1046, 821 N.Y.S.2d 461;  People v. Loo, 14 A.D.3d 716, 789 N.Y.S.2d 247;  People v. Pierre, 2 A.D.3d 461, 462, 767 N.Y.S.2d 822;  People v. Worthy, 308 A.D.2d 555, 764 N.Y.S.2d 833).   Nor does the fact that the defendant was standing in front of the getaway car require suppression of the identification evidence (see People v. Fox, 11 A.D.3d 709, 784 N.Y.S.2d 565;  People v. James, 2 A.D.3d 751, 768 N.Y.S.2d 648;  People v. Hawkins, 188 A.D.2d 616, 617, 591 N.Y.S.2d 75;  People v. Capehart, 151 A.D.2d 592, 593, 543 N.Y.S.2d 921).