PEOPLE v. PAUL

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Kamy L. PAUL, Defendant-Appellant.

Decided: April 30, 2004

PRESENT:  WISNER, J.P., HURLBUTT, SCUDDER, KEHOE, AND GORSKI, JJ. Frank H. HiscockLegal Aid Society, Syracuse (Shirley K. Duffy of Counsel), for Defendant-Appellant. William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Plaintiff-Respondent.

 On appeal from a judgment convicting him upon his plea of guilty of burglary in the first degree (Penal Law § 140.30[1] ) and robbery in the first degree (§ 160.15[2] ), defendant contends that tangible evidence seized from his vehicle and pockets was the product of an unlawful search and seizure and that County Court thus erred in denying his motion to suppress that evidence.   We reject that contention.   The information acquired by police from the victims and bystanders gave rise to reasonable suspicion of criminal activity justifying the stop of defendant's vehicle (see People v. Jeffery, 2 A.D.3d 1271, 769 N.Y.S.2d 675;  People v. Legette, 244 A.D.2d 505, 506, 664 N.Y.S.2d 606, lv. denied 92 N.Y.2d 950, 681 N.Y.S.2d 480, 704 N.E.2d 233;   People v. Maye, 206 A.D.2d 755, 757, 615 N.Y.S.2d 94, lv. denied 84 N.Y.2d 1035, 623 N.Y.S.2d 191, 647 N.E.2d 463).   Moreover, the subsequent observations of the officers, including their observation of weapons in plain view in the stopped vehicle, gave rise to probable cause for arrest, thus warranting the immediate search of defendant's person incident to arrest (see New York v. Belton, 453 U.S. 454, 459, 101 S.Ct. 2860, 69 L.Ed.2d 768, reh. denied 453 U.S. 950, 102 S.Ct. 26, 69 L.Ed.2d 1036;  United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 38 L.Ed.2d 427;  see also People v. Reddick, 265 A.D.2d 855, 695 N.Y.S.2d 636).

 Contrary to defendant's further contention, the showup identification procedure was permissible in the interest of prompt identification and was 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. Lewis, 306 A.D.2d 931, 762 N.Y.S.2d 325, lv. denied 100 N.Y.2d 596, 766 N.Y.S.2d 171, 798 N.E.2d 355;  People v. Amin, 294 A.D.2d 863, 742 N.Y.S.2d 746, lv. denied 98 N.Y.2d 672, 674, 746 N.Y.S.2d 461, 463, 774 N.E.2d 226, 228), and thus the court properly denied defendant's motion to suppress the identification evidence.  “The fact that defendant was standing in the presence of police officers does not by itself render the showup unduly suggestive” (People v. Horne, 2 A.D.3d 1399, 1401, 768 N.Y.S.2d 880, citing People v. Ross, 305 A.D.2d 1073, 1074, 758 N.Y.S.2d 897, lv. denied 1 N.Y.3d 579, 775 N.Y.S.2d 795, 807 N.E.2d 908), nor does the fact that he was in handcuffs (see People v. Lewis, 306 A.D.2d 931, 762 N.Y.S.2d 325, lv. denied 100 N.Y.2d 596, 766 N.Y.S.2d 171, 798 N.E.2d 355;  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. Howington, 284 A.D.2d 1009, 726 N.Y.S.2d 892, lv. denied 97 N.Y.2d 683, 738 N.Y.S.2d 298, 764 N.E.2d 402).   Contrary to defendant's contention, the record establishes that the victim who participated in the showup did not see the recovered items of her property until the showup had taken place.

The challenge by defendant to the validity of his guilty plea is unpreserved for our review (see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5;  People v. Jackson, 278 A.D.2d 875, 718 N.Y.S.2d 924, lv. denied 96 N.Y.2d 759, 725 N.Y.S.2d 286, 748 N.E.2d 1082) and, in any event, is without merit.   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: