People v Bartlett |
2016 NY Slip Op 01505 [137 AD3d 806] |
March 2, 2016 |
Appellate Division, Second Department |
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
The People of the State of New York,
Respondent, v Michael Bartlett, Appellant. |
Clare J. Degnan, White Plains, NY (David B. Weisfuse of counsel), for appellant.
James A. McCarty, Acting District Attorney, White Plains, NY (Elizabeth Z. Marcus, Jennifer Spencer, and Laurie Sapakoff of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Adler, J.), rendered January 10, 2014, convicting him of grand larceny in the fourth degree, criminal possession of stolen property in the fourth degree, criminal possession of stolen property in the fifth degree, and unauthorized use of a vehicle in the third degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress identification testimony.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the hearing court properly denied that branch
of his omnibus motion which was to suppress testimony regarding the showup
identification of him made by a witness. While showup procedures are generally
disfavored, they are permissible, even in the absence of exigent circumstances, when they
are spatially and temporally proximate to the commission of the crime and not unduly
suggestive (see People v Ortiz, 90 NY2d 533, 537 [1997]). Here, the showup
took place less than two hours after the crime and approximately 1
In turn, the defendant failed to satisfy "the ultimate burden of proving that [the] showup procedure [wa]s unduly suggestive and subject to suppression" (People v Ortiz, 90 NY2d at 537). Contrary to the defendant's contentions, the showup was not rendered unduly suggestive because he was handcuffed and in the presence of uniformed police officers (see People v Jay, 41 AD3d 615 [2007]; People v Samuels, 39 AD3d 569, 570 [2007]; People v Rice, 39 AD3d 567, 568 [2007]; People v Bitz, 209 AD2d 709, 709-710 [1994]), or because the police shined the lights of a police vehicle on him (see People v Gilford, 16 NY3d 864, 866-868 [2011]; People v Jerry, 126 AD3d 1001, 1002 [2015]; People v Mais, 71 [*2]AD3d 1163, 1165 [2010]; People v Siler, 45 AD3d 1403 [2007]), or because the witness knew that the police had a suspect (see People v Charles, 110 AD3d 1094, 1096 [2013]). Dillon, J.P., Dickerson, Cohen and Duffy, JJ., concur.