PEOPLE v. RIVERA (2009)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (McKay, J.), rendered October 18, 2005, convicting him of criminal possession of a weapon in the second degree, upon a jury verdict, 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 certain statements made to law enforcement officials, physical evidence, and identification testimony.

ORDERED that the judgment is affirmed.

 The credibility determinations of a hearing court are entitled to great deference on appeal and will not be disturbed unless clearly unsupported by the record (see People v. Graham, 54 A.D.3d 1056, 865 N.Y.S.2d 259;  People v. Wynter, 48 A.D.3d 492, 849 N.Y.S.2d 797).   Contrary to the defendant's contention, the hearing court properly declined to suppress statements he made in response to the question of a police officer who stopped his vehicle after observing a violation of the Vehicle and Traffic Law, and a handgun which was recovered from his vehicle as a result of those statements.   On appeal, the defendant acknowledges that the stop of his vehicle was authorized on the basis of the traffic violation (see e.g. People v. Leiva, 33 A.D.3d 1021, 1022, 823 N.Y.S.2d 494).   The testimony presented at the suppression hearing established that the defendant was not in custody within the meaning of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 at the time the officer asked him whether he had anything in his vehicle which might endanger the officer's safety (see People v. Parris, 26 A.D.3d 393, 394-395, 809 N.Y.S.2d 176;  People v. Myers, 1 A.D.3d 382, 383, 766 N.Y.S.2d 581;  People v. Mathis, 136 A.D.2d 746, 747-748, 523 N.Y.S.2d 915).   Moreover, the officer's inquiry was justified by reasonable suspicion that criminal activity was afoot and an articulable basis for the officer to fear for his safety (see People v. Torres, 74 N.Y.2d 224, 226, 544 N.Y.S.2d 796, 543 N.E.2d 61;  People v. Chestnut, 51 N.Y.2d 14, 21-22, 431 N.Y.S.2d 485, 409 N.E.2d 958;  People v. Guarino, 267 A.D.2d 324, 325, 700 N.Y.S.2d 201;  People v. Bradford, 162 A.D.2d 457, 457-458, 556 N.Y.S.2d 680;  cf. People v. Woods, 189 A.D.2d 838, 842-843, 592 N.Y.S.2d 748).   In response to the officer's question, the defendant stated that he had a firearm in his vehicle.

 Additionally, the hearing court properly declined to suppress identification testimony.   Showup procedures are permissible when they are conducted in close spatial and temporal proximity to the commission of the crime for the purpose of securing a prompt and reliable identification (see People v. Duuvon, 77 N.Y.2d 541, 544, 569 N.Y.S.2d 346, 571 N.E.2d 654;  People v. Gilyard, 32 A.D.3d 1046, 821 N.Y.S.2d 461;  People v. Pierre, 2 A.D.3d 461, 462, 767 N.Y.S.2d 822).   Here, the showup, which was conducted at the site of the crime shortly after the incident occurred, was not unduly suggestive (see People v. Duuvon, 77 N.Y.2d at 545, 569 N.Y.S.2d 346, 571 N.E.2d 654;  People v. Rowlett, 193 A.D.2d 768, 597 N.Y.S.2d 718).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).