People v. Hawkins

• Decision Date: 06 December 2018
• Docket Number: 108783
• Parties: The PEOPLE of the State of New York, Respondent, v. Andrew T. HAWKINS, Appellant.
• Court: New York Supreme Court — Appellate Division

167 A.D.3d 1071
89 N.Y.S.3d 451

The PEOPLE of the State of New York, Respondent,
v.
Andrew T. HAWKINS, Appellant.

108783

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

Calendar Date: October 12, 2018
Decided and Entered: December 6, 2018

89 N.Y.S.3d 452

Michael P. Graven, Owego, for appellant.

Weeden A. Wetmore, District Attorney, Elmira (William D. VanDelinder of counsel), for respondent.

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

MEMORANDUM AND ORDER

Aarons, J.

Appeal from a judgment of the County Court of Chemung County (Rich Jr., J.), rendered March 11, 2016, convicting defendant upon his plea of guilty of the crime of robbery in the first degree.

Defendant was charged in a multicount indictment with robbery in the first degree, assault in the second degree and grand larceny in the fourth degree stemming from an incident where he stole money and caused an injury to the victim. Prior to trial, defendant moved to suppress a witness's identification of him from a photo array. After a Wade hearing, County Court denied the suppression motion. Defendant thereafter pleaded guilty to robbery in the first degree in full satisfaction of the indictment but did not waive his right to appeal or to challenge County Court's suppression hearing order. County Court sentenced defendant, as a second violent felony offender, to a prison term of 14 years, to be followed by five years of postrelease supervision. Defendant appeals. We affirm.

Defendant argues that County Court erred in denying his motion to suppress. We disagree. An unduly suggestive pretrial identification procedure violates the due process rights of the accused (see People v. Chipp, 75 N.Y.2d 327, 335, 553 N.Y.S.2d 72, 552 N.E.2d 608 [1990], cert denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70 [1990] ). "Although the People bear the burden of establishing the reasonableness of the police conduct and the lack

89 N.Y.S.3d 453

of any undue suggestiveness in a pretrial identification procedure, it is the defendant who bears the ultimate burden of proving that the procedure was unduly suggestive" ( People v. Cole, 150 A.D.3d 1476, 1478, 52 N.Y.S.3d 744 [2017] [internal quotation marks, brackets and citations omitted], lv denied 31 N.Y.3d 1146, 83 N.Y.S.3d 428, 108 N.E.3d 502 [2018] ; see People v. Chipp, 75 N.Y.2d at 335, 553 N.Y.S.2d 72, 552 N.E.2d 608 ; People v. Casanova, 152 A.D.3d 875, 876, 60 N.Y.S.3d 503 [2017], lvs denied 30 N.Y.3d 948, 67 N.Y.S.3d 131, 132, 89 N.E.3d 521, 522 [2017] ; People v. Reynoso–Fabian, 134 A.D.3d 1141, 1145, 20 N.Y.S.3d 479 [2015] ).

At the Wade hearing, an investigator with the City of Elmira Police Department testified that he met with the witness in order to show her a photo array. The investigator gave the witness some preliminary instructions and the witness indicated that she understood them. The investigator then showed the witness the array, which consisted of six photos, and asked...