People v. Coe

• Decision Date: 17 August 1987
• Citation: 133 A.D.2d 165,518 N.Y.S.2d 683
• Parties: The PEOPLE, etc., Respondent, v. Guy COE, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 683

518 N.Y.S.2d 683

133 A.D.2d 165

The PEOPLE, etc., Respondent, v. Guy COE, Appellant.

Supreme Court, Appellate Division Second Department.

Aug. 17, 1987.

Robert N. Isseks, P.C., Middletown (Alex Smith, on the brief), for appellant.

Kenneth Gribetz, Dist. Atty., New York City (Janice Gittelman, of counsel), for respondent.

Before MANGANO, J.P., and THOMPSON, KUNZEMAN and SULLIVAN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the County Court, Rockland County (Edelstein, J.), rendered April 9, 1984, convicting him of attempted burglary in the second degree and criminal mischief in the fourth degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Miller, J.), of those branches of the defendant's omnibus motion which were to suppress certain identification evidence, physical evidence and statements made by him to law enforcement officers.

ORDERED that the judgment is affirmed.

The defendant's detention by the arresting officer was proper, since the defendant fit the description relayed over the police radio and was observed only a short distance from the crime scene within minutes of the crime's occurrence. Under these circumstances, the police had a sufficient basis to stop and detain the defendant pending an identification by the complainant (see, People v. Hicks, 68 N.Y.2d 234, 242, 508 N.Y.S.2d 163, 500 N.E.2d 861; People v. De Bour, 40 N.Y.2d 210, 222, 386 N.Y.S.2d 375, 352 N.E.2d 562; People v. Francheschi, 128 A.D.2d 723, 513 N.Y.S.2d 216).

The denial of that branch of the defendant's omnibus motion which was to suppress identification testimony was proper. Although all showups are, by their very nature, suggestive, the standard to be applied is whether a particular showup is, in any way, impermissibly suggestive (see, People v. Love, 57 N.Y.2d 1023, 1025, 457 N.Y.S.2d 474, 443 N.E.2d 948; People v. Brnja, 70 A.D.2d 17, 23, 419 N.Y.S.2d 591, affd. 50 N.Y.2d 366, 429 N.Y.S.2d 173, 406 N.E.2d 1066; People v. Francheschi, supra ). The Court of Appeals, as well as this court, have consistently held that showup identifications which take place in close physical and temporal proximity to the crime, as occurred here, are permissible (see, People v. Love, supra, at 1024-1025, 457 N.Y.S.2d 474, 443 N.E.2d 948; People v. Rivera, 121 A.D.2d 408, 503 N.Y.S.2d 405, lv. denied 68 N.Y.2d 772, 506 N.Y.S.2d 1057, 498 N.E.2d 159). In any event, the in-court identification was correctly permitted as the evidence established that the complainant had a sufficient independent basis upon which to make an identification (see, People v. Rivera, supra ).

While the trial court should have made a complete record of its Sandoval ruling (see, People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413), under the circumstances herein, remittitur is not warranted. The court's ruling, which precluded cross-examination with respect to certain prior...