People v. Digiosaffatte
| Decision Date | 15 May 1978 |
| Citation | 63 A.D.2d 703,404 N.Y.S.2d 879 |
| Parties | The PEOPLE, etc., Appellant, v. Anthony DIGIOSAFFATTE and Michael Puma, Respondents. |
| Court | New York Supreme Court — Appellate Division |
Eugene Gold, Dist. Atty., Brooklyn (Michael Gore, Brooklyn, of counsel), for appellant.
Martin Erdmann and William E. Hellerstein, New York City (Jeff Thaler and Robert Bergen, New York City, of counsel), for respondent Digiosaffatte.
Harold Schwartz, Brooklyn, for respondent Puma.
Before HOPKINS, J. P., and LATHAM, DAMIANI and SUOZZI, JJ.
MEMORANDUM BY THE COURT.
Appeal by the People from an order of the Supreme Court, Kings County, dated November 7, 1977, as of February 8, 1977, which granted defendants' motion to suppress identification testimony.
Order reversed, on the law and the facts motion denied, and case remanded to Criminal Term for further proceedings consistent herewith.
The Criminal Term based its order of suppression on its finding that the showup here was devoid of exigent circumstances to justify its use and was not a prompt on-the-scene showup, having taken place at least an hour and a half after the alleged occurrence. It also found that the showup was both impermissibly suggestive and conducive to an irreparable mistaken identification. With respect to the in-court identifications of the defendants at the Wade hearing, the trial court found that though they had some degree of independence of source, they were tainted by the pretrial procedures used and therefore had to be suppressed. We do not agree.
Our examination of the record leads us to the conclusion that the procedures used in the on-the-scene showup, which occurred approximately one and one-half hours after the crime which led to the indictment of the defendants, were not so suggestive and conducive to irreparable mistaken identification as to violate the standards for such showups set forth in Neil v. Biggers, 409 U.S. 188, 193, 93 S.Ct. 375, 34 L.Ed.2d 401; see, also, United States v. Sanchez, 2 Cir., 422 F.2d 1198. It is our conclusion that, viewed in the totality of the circumstances, the showup was sufficiently close in time to the occurrence of the crime to meet the requirement of People v. Smith, 38 N.Y.2d 882, 883, 382 N.Y.S.2d 745, 346 N.E.2d 546, so as to qualify it for exemption from the requirement of the Wade-Gilbert rules. Hence, the showup cannot serve to impair the in-court identifications which the trial court found had an independent source. Further, since...
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