People v. Bateman

• Decision Date: 15 January 2015
• Citation: 999 N.Y.S.2d 614,124 A.D.3d 983,2015 N.Y. Slip Op. 00402
• Parties: The PEOPLE of the State of New York, Respondent, v. Gary F. BATEMAN, Appellant.
• Court: New York Supreme Court — Appellate Division

?124 A.D.3d 983
999 N.Y.S.2d 614
2015 N.Y. Slip Op. 00402

The PEOPLE of the State of New York, Respondent,
v.
Gary F. BATEMAN, Appellant.

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

Jan. 15, 2015

Affirmed.

[999 N.Y.S.2d 615]

Abbie Goldbas, Utica, for appellant.

Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), for respondent.

Before: LAHTINEN, J.P., GARRY, ROSE and DEVINE, JJ. LAHTINEN, J.P.

Appeal from a judgment of the County Court of Broome County (Cawley, J.), rendered April 29, 2011, upon a verdict convicting defendant of the crimes of robbery in the second degree and robbery in the third degree.

The victim was accosted from behind as she left a bar in the City of Binghamton, Broome County in the early morning hours of March 29, 2009. The perpetrator began choking and striking her, knocking her to the ground. He continued to assault her until she told him to take her money, at which point he took her wallet and fled. Several college students who were in the vicinity when the attack was in progress witnessed it, and then two of them—Yashodhan Chivate and Justin Flechsig—pursued the perpetrator on foot;

[999 N.Y.S.2d 616]

while following him, they enlisted the help of other college students, including Michael Coritsidis and Alexander Douris. The pursuers caught and confronted the perpetrator, who denied involvement and then ran down the alley. The pursuers gave chase, but stopped when confronted by another individual in the alley.

Shortly thereafter, responding to a 911 call and description given of the alleged perpetrator, police detained defendant for separate showup identifications. The victim, who had not seen her attacker's face, identified defendant's clothing and body shape as consistent with her attacker, and several of the pursuers identified defendant as the person they had confronted following the attack. Defendant was indicted on charges of robbery in the second degree and robbery in the third degree. Following a jury trial, he was convicted of both counts and sentenced, as a persistent violent felony offender, to concurrent prison terms of 25 years to life. Defendant appeals.

Defendant argues that the showup procedures were unduly suggestive and that the in-court identifications should have been suppressed. Following a Wade hearing, County Court found that the procedures were not unduly suggestive as to the identifications by the victim and Chivate. Although the court determined that the showup procedure was defective as to Coritsidis and Douris, since they and another individual had traveled together to the showup and admittedly discussed the perpetrator, the court found an adequate independent basis to permit an in-court identification. “A showup identification is permissible so long as it was ‘reasonable under the circumstances—that is, when conducted in close geographic and temporal proximity to the crime—and the procedure used was not unduly suggestive’ ” ( People v. Toye, 107 A.D.3d 1149, 1150, 967 N.Y.S.2d 210 [2013], lv. denied 22 N.Y.3d 1091, 981 N.Y.S.2d 676, 4 N.E.3d 978 [2014], quoting People v. Wicks, 73 A.D.3d 1233, 1235, 900 N.Y.S.2d 485 [2010], lv. denied 15 N.Y.3d 857, 909 N.Y.S.2d 34, 935 N.E.2d 826 [2010] ). If an improper procedure is used, an in-court identification is not necessarily precluded “so long as there is clear and convincing evidence that the in-court identification derives from an independent basis which preceded the improper procedure” ( People v. Albert J., 138 A.D.2d 773, 774, 525 N.Y.S.2d 393 [1988]; see People v. Stacey, 173 A.D.2d 960, 961, 569 N.Y.S.2d 470 [1991], lv. denied 79 N.Y.2d 832, 580 N.Y.S.2d 213, 588 N.E.2d 111 [1991] ).

Evidence at the Wade hearing supported County Court's determination that the showup was not defective as to the victim and Chivate. Based upon the physical build and clothing description given to police, defendant was stopped by police shortly after and within a few blocks of the attack. He was out of breath and appeared nervous. Defendant was not placed in handcuffs. The officer detained him for about five minutes until the victim arrived. The victim identified him as wearing clothing like her attacker, his jacket appeared to have been turned inside out since the attack, and his physical build was the same as the attacker. Arriving separately, Chivate positively identified defendant. These identifications were made close to the scene within less than 30 minutes and not otherwise infected by unduly suggestive procedures ( see People v. Bellamy, 118 A.D.3d 1113, 1116, 987 N.Y.S.2d 666 [2014] ).

With regard to Coritsidis and Douris, their close face-to-face conversation with defendant when they assisted in initially stopping him immediately after the assault provided sufficient proof to support County Court's determination that

[999 N.Y.S.2d 617]

there was an independent basis for their in-court...