People v. Bartlett

• Decision Date: 02 March 2016
• Citation: 137 A.D.3d 806,27 N.Y.S.3d 163
• Parties: The PEOPLE, etc., respondent, v. Michael BARTLETT, appellant.
• Court: New York Supreme Court — Appellate Division

137 A.D.3d 806

27 N.Y.S.3d 163

The PEOPLE, etc., respondent,

v.Michael BARTLETT, appellant.

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

March 2, 2016.

Clare J. Degnan, White Plains, N.Y. (David B. Weisfuse of counsel), for appellant.

James A. McCarty, Acting District Attorney, White Plains, N.Y. (Elizabeth Z. Marcus, Jennifer Spencer, and Laurie Sapakoff of counsel), for respondent.

MARK C. DILLON, J.P., THOMAS A. DICKERSON, JEFFREY A. COHEN, and COLLEEN D. DUFFY, JJ.

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 N.Y.2d 533, 537, 664 N.Y.S.2d 243, 686 N.E.2d 1337 ). Here, the showup took place less than two hours after the crime and approximately 1 ½ miles away from the crime scene (see People v. Rodgers, 6 A.D.3d 464, 465, 774 N.Y.S.2d 349 ; People v. James, 2 A.D.3d 751, 768 N.Y.S.2d 648 ; People v. Boswell, 288 A.D.2d 390, 733 N.Y.S.2d 624 ; People v. Andrews, 255 A.D.2d 328, 329–330, 681 N.Y.S.2d 286 ; People v. McBride, 190 A.D.2d 573, 573–574, 593 N.Y.S.2d 523 ; People v. West, 128 A.D.2d 570, 512 N.Y.S.2d 507 ; People v. Veal, 106 A.D.2d 418, 419, 482 N.Y.S.2d 341 ). The People met their initial burden of establishing the reasonableness of the police conduct and the lack of undue suggestiveness in the showup identification through the testimony of the police officer who transported the witness to the location of the showup, and through the testimony of the police officer who arrested the defendant (see People v. Ortiz, 90 N.Y.2d at 537, 664 N.Y.S.2d 243, 686 N.E.2d 1337 ; People v. Cuesta, 103 A.D.3d 913, 915, 959 N.Y.S.2d 744 ; People v. Gonzalez, 57 A.D.3d 560, 561, 868 N.Y.S.2d 302 ).

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 N.Y.2d at 537, 664 N.Y.S.2d 243, 686 N.E.2d 1337 ). 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 A.D.3d 615, 838 N.Y.S.2d 596 ; People v. Samuels, 39 A.D.3d 569, 570, 833 N.Y.S.2d 575 ; People v. Rice, 39 A.D.3d 567, 568, 834 N.Y.S.2d 254 ;...