PEOPLE v. KLIMAS

Reset A A Font size: Print

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

The PEOPLE, etc., respondent, v. William KLIMAS, appellant.

Decided: March 22, 1999

CORNELIUS J. O'BRIEN, J.P., DAVID S. RITTER, WILLIAM C. THOMPSON and DANIEL W. JOY, JJ. M. Sue Wycoff, New York, N.Y. (Harold V. Ferguson, Jr., of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, and Rona I. Kugler of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kohm, J.), rendered December 3, 1996, convicting him of attempted burglary in the second degree and criminal mischief in the fourth degree, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing (Fisher, J.), of that branch of the defendant's omnibus motion which was to suppress identification evidence.

ORDERED that the judgment is affirmed.

 Contrary to the defendant's contention, the police had reasonable suspicion to detain him for a showup identification in close physical and temporal proximity to the crime (see, People v. Duuvon, 77 N.Y.2d 541, 569 N.Y.S.2d 346, 571 N.E.2d 654;  People v. Lynch, 254 A.D.2d 503, 680 N.Y.S.2d 112;  People v. Johnson, 244 A.D.2d 573, 665 N.Y.S.2d 678).

 Furthermore, during deliberations, the jury requested a readback of part of the testimony of the identifying witness and the court properly complied.   Given that the jury's request delineated the testimony to be read back, and the court responded accordingly (see, CPL 310.30;  People v. Steinberg, 79 N.Y.2d 673, 684, 584 N.Y.S.2d 770, 595 N.E.2d 845;  People v. Malloy, 55 N.Y.2d 296, 302, 449 N.Y.S.2d 168, 434 N.E.2d 237, cert. denied 459 U.S. 847, 103 S.Ct. 104, 74 L.Ed.2d 93), together with the fact that the jury did not request further instruction (see, People v. Chase, 225 A.D.2d 789, 790, 639 N.Y.S.2d 853), the court's response was meaningful and does not require reversal (see, People v. Lourido, 70 N.Y.2d 428, 522 N.Y.S.2d 98, 516 N.E.2d 1212;  see also, People v. Razack, 196 A.D.2d 897, 601 N.Y.S.2d 963).

Lastly, the defendant's sentence was not unduly harsh or excessive (see, People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

MEMORANDUM BY THE COURT.

Copied to clipboard