PEOPLE v. GIL

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

The PEOPLE, etc., appellant, v. Bryan M. GIL, respondent.

Decided: September 26, 2005

STEPHEN G. CRANE, J.P., DANIEL F. LUCIANO, STEVEN W. FISHER, and ROBERT A. LIFSON, JJ. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Douglas A. Spencer of counsel;  Ola Lipska on the brief), for appellant. Naiburg, Rosenblum & Weissman, Central Islip, N.Y. (Ira R. Weissman of counsel), for respondent.

Appeal by the People from an order of the Supreme Court, Suffolk County (Mullen, J.), dated February 18, 2004, which, in effect, granted that branch of the defendant's omnibus motion which was to suppress identification testimony.

ORDERED that the order is reversed, on the law and the facts, and that branch of the defendant's omnibus motion which was to suppress identification testimony is denied.

 “[P]rompt showup identifications which are conducted in close geographic and temporal proximity to the crime are not ‘presumptively infirm’ and in fact have generally been allowed” (People v. Ortiz, 90 N.Y.2d 533, 537, 664 N.Y.S.2d 243, 686 N.E.2d 1337, quoting People v. Duuvon, 77 N.Y.2d 541, 543, 569 N.Y.S.2d 346, 571 N.E.2d 654).   In this case, “the police had reasonable suspicion to pursue, stop, and detain the defendant based upon ․ [a] broadcast which provided ․ a general description [and based on] the close proximity of the defendant to the site of the crime, and the short passage of time between the crime [and the defendant's stop]” (People v. Green, 10 A.D.3d 664, 781 N.Y.S.2d 700;  see People v. Rodgers, 6 A.D.3d 464, 465, 774 N.Y.S.2d 349;  People v. Holland, 4 A.D.3d 375, 770 N.Y.S.2d 872;  People v. Hunt, 306 A.D.2d 497, 498, 762 N.Y.S.2d 416).   The defendant's unusual behavior in running across the street and ducking down behind a tree or bushes added to the reasonable suspicion that justified the defendant's detention pending the victim's prompt “show-up” identification of him as one of the robbers.

 The identification procedure in this case was not improper merely because the defendant was handcuffed at the time that he was displayed to the victim (see e.g. People v. Armstrong, 11 A.D.3d 721, 722, 783 N.Y.S.2d 134;  People v. Robinson, 8 A.D.3d 1028, 1029, 778 N.Y.S.2d 808, affd. sub nom. People v. Daniels, 5 N.Y.3d 738, 800 N.Y.S.2d 369, 833 N.E.2d 704;  People v. Pierre, 2 A.D.3d 461, 462, 767 N.Y.S.2d 822).   Nor was the procedure improper merely because the victim had been told that the police had a suspect in custody (see e.g. People v. Tarangelo, 258 A.D.2d 305, 685 N.Y.S.2d 436;  People v. Green, 256 A.D.2d 85, 682 N.Y.S.2d 34;  People v. Stafford, 215 A.D.2d 212, 626 N.Y.S.2d 763).

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