PEOPLE v. REYES

Reset A A Font size: Print

Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. George REYES, Defendant-Appellant.

Decided: May 25, 2000

SULLIVAN, P.J., ROSENBERGER, WILLIAMS, WALLACH and FRIEDMAN, JJ. Jaime Bachrach, for Respondent. Robert L. Moore, for Defendant-Appellant.

Judgment, Supreme Court, New York County (George Daniels, J.), rendered February 18, 1997, convicting defendant, after a jury trial, of robbery in the third degree, and sentencing him, as a second felony offender, to a term of 3 1/212 to 7 years, unanimously affirmed.

 Defendant's suppression motion was properly denied in all respects.   There is no basis upon which to disturb the court's credibility determinations, which are supported by the record.   The seizure of defendant was based on probable cause (see, People v. Brnja, 50 N.Y.2d 366, 429 N.Y.S.2d 173, 406 N.E.2d 1066), or, at minimum, reasonable suspicion justifying a nonarrest detention for identification in which handcuffing was appropriate under the circumstances (see, People v. Allen, 73 N.Y.2d 378, 540 N.Y.S.2d 971, 538 N.E.2d 323;  People v. Pagan, 227 A.D.2d 133, 641 N.Y.S.2d 641, lv. denied 88 N.Y.2d 991, 649 N.Y.S.2d 398, 672 N.E.2d 624;  People v. Tucker, 223 A.D.2d 424, 636 N.Y.S.2d 759).   In the early morning hours, defendant, who met a description of a robbery suspect, was found hiding under bushes in a park.   When the arresting officer identified himself and told defendant not to move, defendant fled, jumped off a cliff, and continued hiding under bushes until located by police dogs.   Contrary to defendant's argument, his actions clearly signified that he was evading the police.

 The showup identification was proper, since it was conducted in close geographic and temporal proximity to the crime and was not rendered unduly suggestive by the fact that defendant was handcuffed and was in the presence of police officers (see, People v. Duuvon, 77 N.Y.2d 541, 569 N.Y.S.2d 346, 571 N.E.2d 654).   The stolen property found on defendant's person was properly recovered pursuant to a lawful search incident to arrest and defendant's post-arrest statements were knowingly and voluntarily made after a waiver of his Miranda rights.

We perceive no abuse of sentencing discretion.

MEMORANDUM DECISION.