People v. Brewer, 107996

• Decision Date: 30 November 2017
• Docket Number: 107996
• Parties: The PEOPLE of the State of New York, Respondent, v. Reece Z. BREWER, Appellant.
• Court: New York Supreme Court — Appellate Division

155 A.D.3d 1447
66 N.Y.S.3d 342

The PEOPLE of the State of New York, Respondent,
v.
Reece Z. BREWER, Appellant.

107996

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

Calendar Date: October 13, 2017
Decided and Entered: November 30, 2017

66 N.Y.S.3d 343

Michelle E. Stone, Vestal, for appellant.

Weeden A. Wetmore, District Attorney, Elmira (Sophie J. Marmor of counsel), for respondent.

Before: Peters, P.J., Garry, Devine, Clark and Aarons, JJ.

MEMORANDUM AND ORDER

Garry, J.

Appeal from a judgment of the County Court of Chemung County (Hayden, J.), rendered September 28, 2015, convicting defendant upon his plea of guilty of the crime of attempted criminal possession of a weapon in the third degree.

A taxi driver was assaulted and robbed by three passengers, who then ran into a residence in the City of Elmira, Chemung County. Police officers arriving at the scene heard voices and knocked on the door. Defendant answered and was detained after he shouted a warning to those inside. Another man and a woman tried to leave the residence through a back door and were also detained by police officers. The victim identified defendant in a showup procedure as one of the people who had attacked and robbed him. Later that day, police searched the residence twice—first by consent and later pursuant to a warrant—and recovered items related to the robbery and an electronic stun gun. Defendant pleaded guilty to attempted criminal possession of a weapon in the third degree in satisfaction of multiple charges

66 N.Y.S.3d 344

and was sentenced as a second felony offender to a prison term of 1½ to 3 years. Defendant appeals.

County Court did not err in denying defendant's motion to suppress the identification evidence. "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. Vaughn, 135 A.D.3d 1158, 1159, 23 N.Y.S.3d 473 [2016] [internal quotation marks and citations omitted], lv. denied 27 N.Y.3d 1076, 38 N.Y.S.3d 846, 60 N.E.3d 1212 [2016] ; see People v. Ortiz, 90 N.Y.2d 533, 537, 664 N.Y.S.2d 243, 686 N.E.2d 1337 [1997] ). A Wade hearing was conducted, and the testimony established that the victim identified defendant just over an hour after the police were summoned. The officers placed the three suspects in separate patrol cars and removed them one at a time to be viewed as the victim was driven past each suspect standing on the street. The patrol car in which the victim was seated traveled around the block between viewings, so that the victim would not see the suspects as officers transferred them between the patrol cars and the street. Defendant was the second suspect to be viewed. This showup procedure was reasonable, as it was conducted at the scene of the crime and "as soon as practicable following defendant's apprehension" ( People v. August, 33 A.D.3d 1046, 1048, 822 N.Y.S.2d 334 [2006], lv. denied 8 N.Y.3d 878, 832 N.Y.S.2d 490, 864 N.E.2d 620 [2007] ; see People v. Mattis, 46 A.D.3d 929, 930–931, 846 N.Y.S.2d 757 [2007] ; People v. Boyd, 272 A.D.2d 898, 899, 709 N.Y.S.2d 269 [2000], lv. denied 95 N.Y.2d 850, 714 N.Y.S.2d 1, 736 N.E.2d 862 [2000] ). Police said nothing unduly suggestive to the victim before the identification, and the fact that defendant was handcuffed and standing near an officer and several police cars did not render the procedure "so unnecessarily suggestive as to create a substantial likelihood of misidentification" ( People v. Armstrong, 11 A.D.3d 721, 722, 783 N.Y.S.2d 134 [2004] [internal quotation marks and citations omitted], lv. denied 4 N.Y.3d 760, 792 N.Y.S.2d 4, 825 N.E.2d 136 [2005] ; see People v. Franqueira, 143 A.D.3d 1164, 1166, 40 N.Y.S.3d 588 [2016] ; People v. Bellamy, 118 A.D.3d 1113, 1116, 987 N.Y.S.2d 666 [2014], lv. denied 25 N.Y.3d 1159, 15 N.Y.S.3d 292, 36 N.E.3d 95 [2015] ).

Defendant failed to preserve his contention that he was illegally detained by raising it in his omnibus motion or at the suppression hearing (see People v. Wedekind, 200 A.D.2d 891, 892, 607 N.Y.S.2d 173 [1994], lv. denied 83 N.Y.2d 1008, 616 N.Y.S.2d 489, 640 N.E.2d 157 [1994] ; see generally People v. Durham, 146 A.D.3d 1070, 1072, 44 N.Y.S.3d 613 [2017], lv. denied 29 N.Y.3d 997, 57 N.Y.S.3d 718, 80 N.E.3d 411 [2017] ). Upon review, we do not find that his counsel's failure to preserve this issue by requesting a Dunaway hearing deprived defendant of meaningful representation. Defendant matched a general description provided by the victim, and answered the door of the residence into which the three suspects had fled shortly before the police arrived. He stepped out onto a front porch and, upon seeing the police, immediately tried to retreat indoors while shouting a warning to others that police were present. On this evidence, police had reason to suspect that defendant had been involved in the alleged robbery and assault. Given the rapidly developing situation, his detention in a patrol car until he could be viewed by the victim was justified "to quickly confirm or dispel [this] reasonable suspicion" ( People v. Stroman, 107 A.D.3d 1023, 1024, 967 N.Y.S.2d 202 [2013], lv. denied 21 N.Y.3d 1046, 972 N.Y.S.2d 543, 995 N.E.2d 859 [2013] ; see

66 N.Y.S.3d 345

People v. Franqueira, 143 A.D.3d at 1165, 40 N.Y.S.3d 588 ). There is thus little or no...