People v. Ogando

• Decision Date: 19 May 2021
• Docket Number: 2016-11351,Ind. No. 1091/11
• Citation: 194 A.D.3d 963,144 N.Y.S.3d 377 (Mem)
• Parties: The PEOPLE, etc., respondent, v. Nolis OGANDO, appellant.
• Court: New York Supreme Court — Appellate Division

194 A.D.3d 963

144 N.Y.S.3d 377 (Mem)

The PEOPLE, etc., respondent,

v.Nolis OGANDO, appellant.

2016-11351

Ind. No. 1091/11

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

Argued—October 24, 2019

May 19, 2021

Paul Skip Laisure, New York, N.Y. (Kathleen Whooley of counsel), for appellant.

Melinda Katz, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Joseph N. Ferdenzi, and Tina Grillo of counsel), for respondent.

LEONARD B. AUSTIN, J.P., ROBERT J. MILLER, BETSY BARROS, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Joseph A. Zayas, J.), rendered September 22, 2016, convicting him of gang assault in the first degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing (Kenneth C. Holder, J.), of that branch of the defendant's omnibus motion which was to suppress identification testimony. By decision and order dated December 18, 2019, this Court affirmed the judgment (see People v. Ogando, 178 A.D.3d 955, 112 N.Y.S.3d 528 ). On December 15, 2020, the Court of Appeals reversed the decision and order of this Court and remitted the matter to this Court for consideration of issues raised but not determined on the appeal to this Court (see People v. Bisono, 36 N.Y.3d 1013, 140 N.Y.S.3d 433, 164 N.E.3d 239 ). Justice Brathwaite Nelson has been substituted for former Justice Maltese (see 22 NYCRR 1250.1 [b]).

ORDERED that, upon remittitur from the Court of Appeals, the judgment is affirmed.

Contrary to the defendant's contention, the hearing court properly denied that branch of the defendant's omnibus motion which was to suppress certain identification testimony. The defendant was identified by the complainant during a showup procedure conducted near the crime scene. "Showup procedures, although generally disfavored, are permissible where employed in close spatial and temporal proximity to the commission of the crime for the purpose of securing a prompt and reliable identification" ( People v. Castro, 149 A.D.3d 862, 863, 52 N.Y.S.3d 385 ; see People v. Duuvon, 77 N.Y.2d 541, 544, 569 N.Y.S.2d 346, 571 N.E.2d 654 ). Here, the evidence adduced at the suppression hearing established that the showup took place approximately 20 minutes after the crime had occurred and only four blocks away from the crime scene (see People v. McClennon, 188 A.D.3d 918, 918, 132 N.Y.S.3d 328 ; People v. Baez, 175 A.D.3d 553, 554, 107 N.Y.S.3d 385 ; People v. Samuels, 39 A.D.3d 569, 570, 833 N.Y.S.2d 575 ). Contrary to the defendant's contention, the showup procedure was not rendered unduly suggestive because the complainant knew that the police had a suspect in custody (see People v. Baez, 175 A.D.3d at 554, 107 N.Y.S.3d 385 ; People v. Williams, 143 A.D.3d 847, 848, 39 N.Y.S.3d 482 ; People v. Samuels, 39 A.D.3d at 570, 833 N.Y.S.2d 575 ), because the defendant was handcuffed and in the presence of uniformed police officers and police cars (see People v. Baez, 175 A.D.3d at 554, 107 N.Y.S.3d 385 ; People v. Williams, 143 A.D.3d at 848, 39 N.Y.S.3d 482 ; People v. Samuels, 39 A.D.3d at 570, 833 N.Y.S.2d 575 ), because the police shined the lights of police vehicles on him (see People v. Croom, 171 A.D.3d 781, 782, 97 N.Y.S.3d 262 ; People v. Bartlett, 137 A.D.3d 806, 807, 27 N.Y.S.3d 163 ), or because the color of his clothes differed from those worn by the other suspects.

"The determination of whether to grant or deny youthful offender status rests within the sound discretion of the court and depends upon all the attending facts and circumstances of the case" ( People v. McEachern, 163 A.D.3d 850, 851, 81 N.Y.S.3d 571 [...