People v. Padilla

• Decision Date: 18 September 1995
• Citation: 631 N.Y.S.2d 408,219 A.D.2d 688
• Parties: The PEOPLE, etc., Respondent, v. Miguel PADILLA, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 408

631 N.Y.S.2d 408

219 A.D.2d 688

The PEOPLE, etc., Respondent, v. Miguel PADILLA, Appellant.

Supreme Court, Appellate Division Second Department.

Sept. 18, 1995.

Estelle Jana Roond, Brooklyn, for appellant.

Charles J. Hynes, District Attorney, Brooklyn (Roseann B. MacKechnie, Danna Robbins, Robert Cutorna, and Lonnie Mendolia, of counsel), for respondent.

Before O'BRIEN, J.P., and SANTUCCI, JOY and GOLDSTEIN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Barasch, J.), rendered March 5, 1991, convicting him of robbery in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Feldman, J.), of that branch of the defendant's omnibus motion which was to suppress identification testimony.

ORDERED that the judgment is affirmed.

On appeal, the defendant contends, inter alia, that he was deprived of his right to due process because the hearing court denied his request to call civilian identification witnesses at the Wade hearing and that the showup that resulted in the defendant's arrest was unduly suggestive. It is settled law that a defendant does not have an absolute, unqualified right to examine a complaining or identifying witness at a Wade hearing (see, People v. Chipp, 75 N.Y.2d 327, 553 N.Y.S.2d 72, 552 N.E.2d 608, cert. denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70; People v. Harvall, 196 A.D.2d 553, 601 N.Y.S.2d 146; People v. Christenson, 188 A.D.2d 659, 591 N.Y.S.2d 507). To the contrary, this right is triggered only when the hearing record raises substantial issues as to the constitutionality of the identification procedure (see, People v. Chipp, supra ), when the People's evidence is "notably incomplete" (see, People v. Hoehne, 203 A.D.2d 480, 610 N.Y.S.2d 579; People v. Sokolyansky, 147 A.D.2d 722, 538 N.Y.S.2d 69), or when the defendant otherwise establishes a need for the witness's testimony (see, People v. Harvall, supra; People v. Ocasio, 134 A.D.2d 293, 520 N.Y.S.2d 620).

Contrary to the defendant's contention, the testimony presented at the Wade hearing failed to raise a substantial issue as to the constitutionality of the identification procedure. Showups that are conducted in close temporal and spatial proximity to the commission of the crime being investigated are generally permissible (see, People v. Duuvon, 77 N.Y.2d 541, 569 N.Y.S.2d 346, 571 N.E.2d 654; People v. Holley, 205 A.D.2d 638, 613 N.Y.S.2d 232; People v. Mitchell, 185 A.D.2d 249, 585 N.Y.S.2d 783). Given the circumstances present in this case, we do not find that the identification procedure which was conducted while the defendant was handcuffed was constitutionally impermissible (see, People v. Bitz, 209 A.D.2d 709, 619 N.Y.S.2d 158; People v. Grassia, 195 A.D.2d 607, 601 N.Y.S.2d 124; People v. Rowlett, 193 A.D.2d 768, 597 N.Y.S.2d 718; People v. Jenkins, 175 A.D.2d 648, 572 N.Y.S.2d 579).

Any error in permitting the prosecution to elicit testimony from one of the police officers which inferentially bolstered the testimony of a witness who saw the defendant on the subway tracks (see, People v. Trowbridge, 305 N.Y. 471, 113 N.E.2d 841; see, also, People v. Holt, 67 N.Y.2d 819, 501 N.Y.S.2d 641, 492 N.E.2d 769; People v. Gordillo, 191 A.D.2d 455, 594 N.Y.S.2d 60; People v. Bryan, 179 A.D.2d 667, 578 N.Y.S.2d 608; People v. Vasquez, 120 A.D.2d 757, 502 N.Y.S.2d 282) must be considered harmless in view of the strong and positive identification that was made within minutes...