People v. Slattery

• Decision Date: 01 February 2017
• Citation: 46 N.Y.S.3d 193,2017 N.Y. Slip Op. 00669,147 A.D.3d 788
• Parties: The PEOPLE, etc., respondent, v. Timothy SLATTERY, appellant.
• Court: New York Supreme Court — Appellate Division

147 A.D.3d 788

46 N.Y.S.3d 193

2017 N.Y. Slip Op. 00669

The PEOPLE, etc., respondent,

v.Timothy SLATTERY, appellant.

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

Feb. 1, 2017.

Del Atwell, East Hampton, NY, for appellant.

Thomas J. Spota, District Attorney, Riverhead, NY (Rosalind C. Gray of counsel), for respondent.

MARK C. DILLON, J.P., L. PRISCILLA HALL, SYLVIA O. HINDS–RADIX, and VALERIE BRATHWAITE NELSON, JJ.

Appeal by the defendant from a judgment of the County Court, Suffolk County (Cohen, J.), rendered May 29, 2014, convicting him of robbery in the first degree and resisting arrest, upon a jury verdict, and sentencing him to a determinate term of imprisonment of 15 years, to be followed by a period of postrelease supervision of 5 years, on the conviction of robbery in the first degree, to run concurrently with a definite term of incarceration of 1 year on the conviction of resisting arrest. The appeal brings up for review the denial, after a hearing, of those branches of the defendant's omnibus motion which were to suppress identification evidence and his statements to law enforcement officials.

ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the sentence imposed on the conviction of robbery in the first degree from a determinate term of imprisonment of 15 years, to be followed by a period of postrelease supervision of 5 years, to a determinate term of imprisonment of 10 years, to be followed by a period of postrelease supervision of 5 years; as so modified, the judgment is affirmed.

Contrary to the defendant's contention, the County Court properly denied his motion to dismiss the indictment. The grand jury instructions were sufficient and did not impair the integrity of the proceeding (see People v. Calbud, 49 N.Y.2d 389, 426 N.Y.S.2d 238, 402 N.E.2d 1140 ; People v. Burch, 108 A.D.3d 679, 681, 968 N.Y.S.2d 592 ).

The County Court properly denied that branch of the defendant's omnibus motion which was to suppress identification evidence. The defendant was identified by the complainant at a showup procedure conducted near the crime scene. While showup procedures are generally disfavored, they are permissible, even in the absence of exigent circumstances, when they are spatially and temporally proximate to the commission of the crime and not unduly suggestive (see People v. Brisco, 99 N.Y.2d 596, 597, 758 N.Y.S.2d 262, 788 N.E.2d 611 ; People v. Ortiz, 90 N.Y.2d 533, 537, 664 N.Y.S.2d 243, 686 N.E.2d 1337 ; People v. Duuvon, 77 N.Y.2d 541, 543, 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 30 minutes after the crime and a few blocks away from the crime scene (see People v. Loo, 14 A.D.3d 716, 789 N.Y.S.2d 247 ; People v. Ponce de Leon, 291 A.D.2d 415, 737 N.Y.S.2d 306 ; People v. Rodney, 237 A.D.2d 541, 541–542, 655 N.Y.S.2d 577 ; People v. Thompson, 215 A.D.2d 604, 605, 627 N.Y.S.2d 697 ). The People met their " ‘initial burden of going forward to establish the reasonableness of the police conduct and the lack of any undue suggestiveness in a pretrial identification procedure’ " through the testimony of police officers who received the report of the crime, transported the complainant to the showup location, and secured the defendant during the showup (People v. Ortiz, 90 N.Y.2d at 537, 664 N.Y.S.2d 243, 686 N.E.2d 1337, quoting People v. Chipp, 75 N.Y.2d 327, 335, 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 ; see People v. Mitchell, 185 A.D.2d 249, 250, 585 N.Y.S.2d 783 ; People v. Sanchez, 178 A.D.2d 567, 568, 577 N.Y.S.2d 653 ). In turn, the defendant failed to satisfy "the ultimate burden of proving that [the] showup procedure [wa]s unduly suggestive and subject to suppression" (People v. Ortiz, 90 N.Y.2d at 537, 664 N.Y.S.2d 243, 686 N.E.2d 1337 ). The defendant's contention that the complainant may have been improperly influenced at the time of the identification is purely speculative (see People v. Berry, 50 A.D.3d 1047, 1048–1049, 856 N.Y.S.2d 228 ; People v. Dottin, 255 A.D.2d 521, 682 N.Y.S.2d 221 ). Furthermore, the fact that the defendant was handcuffed and in the presence of police officers does not render the showup unduly suggestive (see People v. Mack, 135 A.D.3d 962, 963, 24 N.Y.S.3d 381 ; People v. Jerry, 126 A.D.3d 1001, 1002, 4 N.Y.S.3d 317 ; People v. Charles, 110 A.D.3d 1094, 1096, 973 N.Y.S.2d 763 ; People v. Gonzalez, 57 A.D.3d 560, 561, 868 N.Y.S.2d 302 ; People v. Berry, 50 A.D.3d 1047, 856 N.Y.S.2d 228 ; People v. Jay, 41 A.D.3d 615, 838 N.Y.S.2d 596 ).

Further, the County Court properly denied that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement officials. The evidence adduced at the hearing established that the subject statements were made in the context of a brief conversation between the defendant and a detective during the booking process. The statements were not made in response to express questioning or its functional equivalent (see People v. Acevedo, 258 A.D.2d 140, 695 N.Y.S.2d 572 ; People v. Langston, 243 A.D.2d 728, 663 N.Y.S.2d 629 ; cf. People v. Ferro, 63 N.Y.2d 316, 482 N.Y.S.2d 237, 472 N.E.2d 13 ), and the brief exchange was not likely to elicit an incriminating response (see...