People v. Santana, 2015–02231

• Decision Date: 21 March 2018
• Docket Number: Ind.No. 1741/13,2015–02231
• Parties: The PEOPLE, etc., respondent, v. Jeison SANTANA, appellant.
• Court: New York Supreme Court — Appellate Division

159 A.D.3d 926

70 N.Y.S.3d 87 (Mem)

The PEOPLE, etc., respondent,

v.Jeison SANTANA, appellant.

2015–02231

Ind.No. 1741/13

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

March 21, 2018

Argued—November 30, 2017

N. Scott Banks, Hempstead, N.Y. (Tammy Feman and Argun M. Ulgen of counsel), for appellant.

Madeline Singas, District Attorney, Mineola, N.Y. (Yael V. Levy and Kevin C. King of counsel), for respondent.

REINALDO E. RIVERA, J.P., JEFFREY A. COHEN, JOSEPH J. MALTESE, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Teresa K. Corrigan, J.), rendered February 25, 2015, adjudicating him a youthful offender, upon a jury verdict finding him guilty of attempted robbery in the second degree and attempted petit larceny, and imposing sentence. The appeal brings up for review the denial, after a hearing pursuant to a stipulation in lieu of motions (Meryl J. Berkowitz, J.), of the suppression of showup identification testimony.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, the People were not required to provide him with notice of the alleged showup identification testimony of a certain police officer, since the officer did not make an identification of the defendant within the meaning of CPL 710.30 (see People v. Gissendanner, 48 N.Y.2d 543, 551–552, 423 N.Y.S.2d 893, 399 N.E.2d 924 ; People v. Dotson, 30 A.D.3d 181, 181, 815 N.Y.S.2d 581 ; People v. Moon, 180 A.D.2d 652, 652, 580 N.Y.S.2d 362 ; cf. People v. Pacquette, 25 N.Y.3d 575, 578, 14 N.Y.S.3d 775, 35 N.E.3d 845 ; People v. Boyer, 6 N.Y.3d 427, 813 N.Y.S.2d 31, 846 N.E.2d 461 ; People v. Newball, 76 N.Y.2d 587, 561 N.Y.S.2d 898, 563 N.E.2d 269 ). Further, contrary to the defendant's contention, the hearing court properly declined to suppress the complainant's showup identification testimony, since the showup took place in close spatial and temporal proximity to the commission of the crime (see People v. Johnson, 104 A.D.3d 705, 706, 960 N.Y.S.2d 206 ; People v. Jacob, 94 A.D.3d 1142, 1144, 942 N.Y.S.2d 627 ; People v. Gonzalez, 57 A.D.3d 560, 561, 868 N.Y.S.2d 302 ; People v. Cruz, 31 A.D.3d 660, 661, 818 N.Y.S.2d 302 ; People v. Rodney, 237 A.D.2d 541, 541–542, 655 N.Y.S.2d 577 ) and was not unduly suggestive (see People v. Jerry, 126 A.D.3d 1001, 1002, 4 N.Y.S.3d 317 ; People v. Gonzalez, 57 A.D.3d at 561, 868 N.Y.S.2d 302 ; People v. Crumble, 43 A.D.3d 953, 953, 842 N.Y.S.2d 35 ; People v. Grassia, 195 A.D.2d 607, 607, 601 N.Y.S.2d 124 ; People v. Rowlett, 193 A.D.2d 768, 768, 597 N.Y.S.2d 718 ; cf. e.g. People v. Adams, 53 N.Y.2d 241, 248–249, 440 N.Y.S.2d 902, 423 N.E.2d 379 ).

The defendant's contention that the evidence was legally insufficient to support his convictions is unpreserved for appellate review (see CPL 470.05 [2] ; People v. Hawkins, 11 N.Y.3d 484, 491–492, 872 N.Y.S.2d 395, 900 N.E.2d 946 ; People v. Campbell, 142 A.D.3d 623, 623–624, 36 N.Y.S.3d 503 ). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that the evidence was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdict of guilty was not against the weight of the...