PEOPLE v. DELAROSA

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Rafael D. DELAROSA, Defendant-Appellant.

Decided: April 28, 2006

PRESENT:  SCUDDER, J.P., KEHOE, SMITH, GREEN, AND PINE, JJ. John E. Tyo, Shortsville, for Defendant-Appellant. R. Michael Tantillo, District Attorney, Canandaigua (Thomas D. Reh of Counsel), for Plaintiff-Respondent.

Defendant appeals from a judgment convicting him, upon his Alford plea, of two counts of robbery in the second degree (Penal Law § 160.10[1], [2] [a] ) and one count of burglary in the first degree (§ 140.30[2] ).   Contrary to defendant's contention, County Court properly determined that the showup identification procedure was not unduly suggestive (see People v. Newton, 24 A.D.3d 1287, 1288, 806 N.Y.S.2d 826), and thus the court properly refused to suppress the identification testimony of the four occupants of the burglarized apartment.   The record establishes that the showup was conducted in geographic and temporal proximity to the crime (see People v. Branch, 24 A.D.3d 1285, 808 N.Y.S.2d 848).   The fact that defendant was in handcuffs standing next to a police officer when viewed by the witnesses does not render the procedure unduly suggestive as a matter of law (see People v. Clark, 26 A.D.3d 743, 810 N.Y.S.2d 264;  People v. Paul, 6 A.D.3d 1129, 1130, 776 N.Y.S.2d 682, lv. denied 3 N.Y.3d 679, 784 N.Y.S.2d 18, 817 N.E.2d 836), nor does the fact that defendant was viewed simultaneously by multiple witnesses (see People v. Zeigler, 299 A.D.2d 910, 911, 752 N.Y.S.2d 449, lv. denied 99 N.Y.2d 586, 755 N.Y.S.2d 723, 785 N.E.2d 745;  People v. Thomas, 105 A.D.2d 1098, 482 N.Y.S.2d 646;  see generally People v. Duuvon, 77 N.Y.2d 541, 545, 569 N.Y.S.2d 346, 571 N.E.2d 654).   There is no indication in the record that any witness influenced another witness during the simultaneous viewing (see Thomas, 105 A.D.2d 1098, 482 N.Y.S.2d 646;  see generally People v. Pross, 302 A.D.2d 895, 896, 754 N.Y.S.2d 792, lv. denied 99 N.Y.2d 657, 760 N.Y.S.2d 122, 790 N.E.2d 296).

The court also properly refused to suppress the tangible evidence seized by the police.   We conclude that the officers had probable cause to arrest the suspects for robbery based upon the contents of the 911 telephone call and police dispatches and the officers' observations at the scene (see People v. Hamilton, 17 A.D.3d 1052, 1053-1054, 793 N.Y.S.2d 653;  People v. Jones, 155 A.D.2d 889, 547 N.Y.S.2d 722, lv. denied 75 N.Y.2d 814, 552 N.Y.S.2d 564, 551 N.E.2d 1242), and we further conclude that the officers had probable cause to search the vehicle for fruits of that robbery, weapons used by the suspects, or other evidence of the crime (see People v. Shabazz, 289 A.D.2d 1059, 735 N.Y.S.2d 691, cert. denied 537 U.S. 1165, 123 S.Ct. 976, 154 L.Ed.2d 903, affd. 99 N.Y.2d 634, 760 N.Y.S.2d 717, 790 N.E.2d 1146, rearg. denied 100 N.Y.2d 556, 763 N.Y.S.2d 814, 795 N.E.2d 40;  People v. Langen, 60 N.Y.2d 170, 181-182, 469 N.Y.S.2d 44, 456 N.E.2d 1167, cert. denied 465 U.S. 1028, 104 S.Ct. 1287, 79 L.Ed.2d 690).   Although defendant further contends on appeal that the court “should have suppressed [his] statement,” we note that the court essentially did so, based on the People's concession that the statement was elicited after defendant had invoked his right to remain silent.   Finally, the sentence is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: