In re Heydi M.

• Decision Date: 11 October 2017
• Citation: 61 N.Y.S.3d 909 (Mem),154 A.D.3d 759
• Parties: In the Matter of HEYDI M. (Anonymous), Appellant.
• Court: New York Supreme Court — Appellate Division

154 A.D.3d 759

61 N.Y.S.3d 909 (Mem)

In the Matter of HEYDI M. (Anonymous), Appellant.

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

Oct. 11, 2017.

Robert Hausner, Garden City, NY, for appellant.

Zachary W. Carter, Corporation Counsel, New York, NY (Deborah A. Brenner and Daniel Matza–Brown of Counsel), for respondent.

ORDERED that the order of disposition is affirmed, without costs or disbursements.

The presentment agency filed a petition alleging that the appellant committed acts which, if committed by an adult, would have constituted the crimes, inter alia, of attempted assault in the first degree, attempted gang assault in the first degree, assault in the second degree, attempted assault in the second degree, grand larceny in the fourth degree, criminal possession of stolen property in the fifth degree, criminal possession of a weapon in the fourth degree, and criminal mischief in the fourth degree. The appellant moved to suppress testimony regarding a showup identification and any in-court identification flowing therefrom. Following a Wade hearing (see United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 ), the Family Court denied the appellant's motion.

"While the defendant bears the ultimate burden of proving that a showup procedure is unduly suggestive and subject to suppression, the burden is on the People first to produce evidence validating the admission of such evidence" ( People v. Ortiz, 90 N.Y.2d 533, 537, 664 N.Y.S.2d 243, 686 N.E.2d 1337 ; see Matter of Shan M., 137 A.D.3d 1144, 1144–1145, 28 N.Y.S.3d 101 ; People v. Mack, 135 A.D.3d 962, 24 N.Y.S.3d 381 ). The presentment agency's burden consists of two elements. First, the presentment agency must "demonstrate that the showup was reasonable under the circumstances. Proof that the showup was conducted in close geographic and temporal proximity to the crime will generally satisfy this element of the [presentment agency's] burden" ( People v. Ortiz, 90 N.Y.2d at 537, 664 N.Y.S.2d 243, 686 N.E.2d 1337 ; see Matter of Shan M., 137 A.D.3d at 1145, 28 N.Y.S.3d 101 ; People v. Guitierres, 82 A.D.3d 1116, 1117, 919 N.Y.S.2d 211 ). Second, the presentment agency must produce "some evidence relating to the showup itself, in order to demonstrate that the procedure was not unduly suggestive" ( People v. Ortiz, 90 N.Y.2d at 537, 664 N.Y.S.2d 243, 686 N.E.2d 1337 ; see Matter of Shan M., 137 A.D.3d at 1145, 28 N.Y.S.3d 101 ).

Here, the presentment agency met its initial burden of establishing the reasonableness of the police conduct and the lack of undue suggestiveness (see People v. Jerry, 126 A.D.3d 1001, 1002, 4 N.Y.S.3d 317 ; People v. Charles, 110 A.D.3d 1094, 1095–1096, 973 N.Y.S.2d 763 ; People v. Calero, 105 A.D.3d 864, 864–865, 962 N.Y.S.2d 665 ), and the appellant failed to satisfy the ultimate burden of demonstrating that the showup procedure was unduly suggestive (see People v. Ortiz, 90 N.Y.2d at 537, 664 N.Y.S.2d 243, 686 N.E.2d 1337 ; People v. Jerry, 126 A.D.3d at 1002, 4 N.Y.S.3d 317 ; People v. Charles, 110 A.D.3d at 1096, 973 N.Y.S.2d 763 ; People v. Guitierres, 82 A.D.3d at 1117, 919 N.Y.S.2d 211 ). Accordingly, the Family Court properly denied the appellant's motion to suppress identification testimony.

The appellant's challenge to the legal sufficiency of the evidence is not preserved for appellate review (cf. CPL 470.05[2] ).

In any event, viewing the evidence in the light most favorable to the presentment agency (see Matter of David H., 69 N.Y.2d 792, 513 N.Y.S.2d 111, 505 N.E.2d 621 ), we find that it was legally sufficient to establish, beyond a reasonable doubt, the appellant's identity as one of the persons who committed the acts complained of (see Matter of Jarell W., 137 A.D.3d 1154, 26 N.Y.S.3d 877 ; Matter of Jamal G., 127 A.D.3d 1081, 7 N.Y.S.3d 500 ; Matter of Anthony A., 121 A.D.3d 885, 994 N.Y.S.2d 384 ), and that she committed acts which, if committed by an adult, would have constituted the crimes of attempted assault in the first degree ( Penal Law §§ 110.00 ; 120.10 [1] ), attempted gang assault in the first degree ( Penal Law §§ 110.00, 120. 07), assault in the second degree ( Penal Law § 120.05[2] ), attempted assault in the second degree ( Penal Law §§ 110.00 ; 120.05[1] ), grand larceny in the fourth degree ( Penal Law § 155.30[5] ),...