Opinion
07-13-2016
The PEOPLE, etc., appellant, v. Rueben HUERTA, defendant, Luis Montolla, Fernando Villada, and Oscar Sanchez, respondents.
Thomas P. Zugibe, District Attorney, New City, NY (Itamar J. Yeger of counsel), for appellant. The Law Offices of Beth B. Finkelstein, P.C., New City, NY, for respondent Luis Montolla. James D. Licata, New City, NY (Ellen O'Hara Woods of counsel), for respondent Fernando Villada. Law Office of Spencer A. Leeds, New City, NY, for respondent Oscar Sanchez.
Thomas P. Zugibe, District Attorney, New City, NY (Itamar J. Yeger of counsel), for appellant.
The Law Offices of Beth B. Finkelstein, P.C., New City, NY, for respondent Luis Montolla.
James D. Licata, New City, NY (Ellen O'Hara Woods of counsel), for respondent Fernando Villada.
Law Office of Spencer A. Leeds, New City, NY, for respondent Oscar Sanchez.
MARK C. DILLON, J.P., LEONARD B. AUSTIN, ROBERT J. MILLER, HECTOR D. LaSALLE, JJ.
Opinion Appeal by the People from so much of an order of the County Court, Rockland County (Thorsen, J.), dated October 27, 2015, as, after a hearing, granted those branches of the separate omnibus motions of the defendants Luis Montolla, Fernando Villada, and Oscar Sanchez which were to suppress showup identification evidence.
ORDERED that the order is reversed insofar as appealed from, on the law and the facts, those branches of the separate omnibus motions of the defendants Luis Montolla, Fernando Villada, and Oscar Sanchez which were to suppress showup identification evidence are denied, and the matter is remitted to the County Court, Rockland County, for further proceedings consistent herewith.
The defendants Luis Montolla, Fernando Villada, and Oscar Sanchez (hereinafter collectively the defendants), together with a codefendant, Rueben Huerta, were indicted for attempted gang assault in the first degree and attempted assault in the first degree. Following a combined Wade/Mapp hearing (see United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 ; Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 ), the County Court granted those branches of the defendants' separate omnibus motions which were to suppress showup identification evidence on the ground that the showup identifications were unduly suggestive.
The County Court erred in suppressing the showup identifications of the defendants. Under New York law, showup identifications are strongly disfavored but are permissible if exigent circumstances require immediate identification (see People v. Ward, 116 A.D.3d 989, 991, 984 N.Y.S.2d 123 ). “Showup procedures ‘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’ ” (id. at 991, 984 N.Y.S.2d 123, quoting People v. Johnson, 104 A.D.3d 705, 705, 960 N.Y.S.2d 206 ; see 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 ). While the defendant bears the ultimate burden of proving that a showup procedure is unduly suggestive and subject to suppression, “the People have the 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” (People v. Chipp, 75 N.Y.2d 327, 335, 553 N.Y.S.2d 72, 552 N.E.2d 608 ; see People v. Ortiz, 90 N.Y.2d 533, 537, 664 N.Y.S.2d 243, 686 N.E.2d 1337 ).
Here, the People met their initial burden of establishing that the showup identification procedure, which was conducted within approximately 30 minutes of the crime and within three or four blocks of the crime scene, was reasonable under the circumstances and lacked undue suggestiveness (see People v. Mack, 135 A.D.3d 962, 24 N.Y.S.3d 381 ; People v. Hudson, 71 A.D.3d 1046, 900 N.Y.S.2d 66 ; People v. Berry, 50 A.D.3d 1047, 856 N.Y.S.2d 228 ; People v. Rodgers, 6 A.D.3d 464, 774 N.Y.S.2d 349 ; People v. Tislon, 279 A.D.2d 488, 719 N.Y.S.2d 590 ; People v. Yearwood, 197 A.D.2d 554, 602 N.Y.S.2d 206 ). The defendants, in turn, failed to satisfy their ultimate burden of proving that the showup identification procedure was unduly suggestive and subject to suppression. Under the circumstances of this case, the mere presence of police, patrol cars, headlights, or other lighting at the scene of the identifications did not render the procedure unduly suggestive (see People v. Jerry, 126 A.D.3d 1001, 4 N.Y.S.3d 317 ; People v. Peterson, 110 A.D.3d 1103, 973 N.Y.S.2d 785 ; People v. Charles, 110 A.D.3d 1094, 973 N.Y.S.2d 763 ; People v. Mais, 71 A.D.3d 1163, 1164, 897 N.Y.S.2d 716 ). Moreover, the defendants' contention that the showup identification procedure was unduly suggestive on the ground that the identifying witness may have heard a radio transmission indicating that a sneaker was found at the crime scene, and that the codefendant, Rueben Huerta, was wearing mismatched sneakers, is without merit. The hearing testimony established that the identifying witness did not rely upon Huerta's mismatched sneakers in identifying the defendants, as the identifying witness, upon identifying the three defendants, specifically looked about for a fourth person he called “Rueben” before Rueben Huerta appeared moments later and was identified. To the extent that the defendants contend that the identifying witness's identification of them was not reliable because the identifying witness had facial trauma, including swelling around his eyes, and smelled of alcohol, this contention is without merit (see People v. Lee, 221 A.D.2d 255, 256, 634 N.Y.S.2d 68 ).
We decline the People's request that the case be remitted to a different Judge of the County Court (see generally People v. Ramdass, 88 A.D.3d 1019, 1019–1020, 931 N.Y.S.2d 534 ).