PEOPLE v. HUDSON (2010)

Appeal by the defendant from a judgment of the County Court, Nassau County (Brown, J.), rendered May 25, 2007, convicting him of robbery in the first degree and unlawful possession of marijuana, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress identification testimony.

ORDERED that the judgment is affirmed.

The defendant improperly relies, in part, upon trial testimony to challenge the hearing court's determination denying suppression of the showup identification evidence. Trial testimony may not be considered in evaluating a suppression ruling on appeal (see People v. Abrew, 95 N.Y.2d 806, 809, 710 N.Y.S.2d 833, 732 N.E.2d 940; People v. Riley, 70 N.Y.2d 523, 532, 522 N.Y.S.2d 842, 517 N.E.2d 520; People v. Gonzalez, 55 N.Y.2d 720, 721-722, 447 N.Y.S.2d 145, 431 N.E.2d 630, cert denied 456 U.S. 1010, 102 S.Ct. 2304, 73 L.Ed.2d 1306; People v. Rice, 39 A.D.3d 567, 568, 834 N.Y.S.2d 254; People v. Crosby, 33 A.D.3d 719, 720, 821 N.Y.S.2d 908; People v. Gold, 249 A.D.2d 414, 415, 670 N.Y.S.2d 789). In any event, the defendant's contention is without merit. The showup took place within an hour of the commission of the crime, at the location where the “getaway car” was found, five miles from the scene of the crime, and in the context of a continuous, ongoing investigation (see People v. Brisco, 99 N.Y.2d 596, 597, 758 N.Y.S.2d 262, 788 N.E.2d 611; Brisco v. Ercole, 565 F.3d 80; cf. People v. Gonzalez, 61 A.D.3d 775, 776, 877 N.Y.S.2d 171; People v. Rice, 39 A.D.3d at 568, 834 N.Y.S.2d 254; People v. Gilyard, 32 A.D.3d 1046, 821 N.Y.S.2d 461; People v. Cruz, 31 A.D.3d 660, 661, 818 N.Y.S.2d 302; People v. Loo, 14 A.D.3d 716, 717, 789 N.Y.S.2d 247; People v. Pierre, 2 A.D.3d 461, 462, 767 N.Y.S.2d 822). Accordingly, the showup was not unduly suggestive.

Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 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. Moreover, 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, 348-349, 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. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Upon reviewing the record, 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, 643-644, 826 N.Y.S.2d 163, 859 N.E.2d 902).