PEOPLE v. GONZALEZ (2008)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Guzman, J.), rendered January 27, 2005, convicting him of assault in the first degree and criminal possession of a controlled substance in the seventh degree, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing (Partnow, 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 a witness to the assault 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” (People v. Berry, 50 A.D.3d 1047, 1048, 856 N.Y.S.2d 228;  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, there was evidence that the showup identification took place less than one hour after the crime and approximately three blocks away from the crime scene (see People v. Berry, 50 A.D.3d 1047, 1048, 856 N.Y.S.2d 228;  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, 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 establishing the reasonableness of the police conduct and the lack of undue suggestiveness in the showup identification through the testimony of the officers who transported the witness to the location of the showup and those who located and secured the defendant during the showup (see People v. Ortiz, 90 N.Y.2d at 537, 664 N.Y.S.2d 243, 686 N.E.2d 1337;  People v. Dottin, 255 A.D.2d 521, 682 N.Y.S.2d 221;  People v. Mitchell, 185 A.D.2d 249, 250, 585 N.Y.S.2d 783).

The defendant failed to satisfy his burden of proving that the procedure was unduly suggestive (see People v. Ortiz, 90 N.Y.2d at 537, 664 N.Y.S.2d 243, 686 N.E.2d 1337).   The fact that the defendant was handcuffed and standing in front of a police car while in the presence of uniformed officers does not render the showup unduly suggestive (see People v. Guy, 47 A.D.3d 643, 643-644, 850 N.Y.S.2d 476;  People v. Jay, 41 A.D.3d 615, 838 N.Y.S.2d 596;  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. Grassia, 195 A.D.2d 607, 601 N.Y.S.2d 124).

Defense counsel advanced arguments consistent with the evidence presented at trial, and the defendant was not denied the effective assistance of counsel (see People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584;  People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400;  People v. Ludwig, 155 A.D.2d 558, 547 N.Y.S.2d 414;  cf. People v. Lee, 129 A.D.2d 587, 588, 514 N.Y.S.2d 84).   The court was not required to conduct a competency hearing pursuant to CPL article 730 (see people v. tortorici, 92 n.y.2d 757, 765, 686 N.y.s.2D 346, 709 n.e.2d 87, cert. denied 528 U.S. 834, 120 S.Ct. 94, 145 L.Ed.2d 80;  People v. Simpson, 52 A.D.3d 846, 859 N.Y.S.2d 381;  People v. Scivolette, 40 A.D.3d 887, 888, 836 N.Y.S.2d 262).

Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.   In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5];  People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 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. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

The defendant's remaining contentions are without merit.