Supreme Court, Appellate Division, Second Department, New York.
The PEOPLE, etc., respondent, v. Sean PINNOCK, a/k/a Ricardo Brown, appellant.
Decided: September 09, 2008
PETER B. SKELOS, J.P., JOSEPH COVELLO, JOHN M. LEVENTHAL, and ARIEL E. BELEN, JJ.
Judith E. Permutt, Scarsdale, N.Y., for appellant. Janet DiFiore, District Attorney, White Plains, N.Y. (Maria I. Wager, Richard Longworth Hecht, and Anthony J. Servino of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County (Bellantoni, J.), rendered February 22, 2006, convicting him of attempted robbery in the first degree (two counts), attempted burglary in the first degree (two counts), criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree, and endangering the welfare of a child (two counts), 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 identification testimony and his statements to law enforcement officials.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the hearing court properly determined that the showup identification procedure, which was conducted in close geographic and temporal proximity to the incident, was reasonable under the circumstances 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. Duuvon, 77 N.Y.2d 541, 542–543, 569 N.Y.S.2d 346, 571 N.E.2d 654; People v. Berry, 50 A.D.3d 1047, 856 N.Y.S.2d 228; People v. Crumble, 43 A.D.3d 953, 842 N.Y.S.2d 35; 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, lv. denied 9 N.Y.3d 868, 840 N.Y.S.2d 898, 872 N.E.2d 1204; People v. Gilyard, 32 A.D.3d 1046, 821 N.Y.S.2d 461; People v. Loo, 14 A.D.3d 716, 716–717, 789 N.Y.S.2d 247). In addition, the hearing court properly denied that branch of the defendant's omnibus motion which was to suppress evidence that he intentionally broke a cellular phone that police officers handed him while he was in custody without having been given Miranda warnings (see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694). The defendant's act was not the result of any police compulsion and was not testimonial evidence (see People v. Berg, 92 N.Y.2d 701, 703–704, 685 N.Y.S.2d 906, 708 N.E.2d 979; People v. Thomas, 46 N.Y.2d 100, 107–110, 412 N.Y.S.2d 845, 385 N.E.2d 584; cf. People v. Havrish, 8 N.Y.3d 389, 392, 834 N.Y.S.2d 681, 866 N.E.2d 1009, cert. denied 552 U.S. 886, 128 S.Ct. 207, 169 L.Ed.2d 145  ).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).
The defendant's remaining contentions are without merit.
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