Opinion
November 28, 1995
Appeal from the Supreme Court, New York County (Carol Berkman, J.).
On the evening of August 8, 1991, defendants approached the front of a restaurant and, without warning, pulled out guns and opened fire, killing one person and seriously injuring two others. Although defendants then fled the scene, they were apprehended shortly thereafter. Indeed, since there were many persons in the area at the time, and defendants were observed during much of the time before and after the crime, including during their disposal of the weapons, the evidence at trial overwhelmingly established each defendant's participation in the shootings.
Although showups are, by their very nature, suggestive and, therefore, disfavored ( People v Duuvon, 77 N.Y.2d 541, 543; People v Riley, 70 N.Y.2d 523, 529), such identifications are permissible "if the suspects are captured at or near the crime scene and can be viewed by the witness immediately" ( People v Riley, supra, at 529). Thus, "at-the-crime-scene civilian showup identifications are not presumptively infirm" ( People v Duuvon, supra, at 543). In the situation herein, the showup took place shortly after the crime and at the site of its commission. Despite the fact that the victim was bleeding and being treated for his wound, he was alert when each defendant was escorted into the back of the ambulance for viewing. Such a prompt, at-the-scene showup procedure is not rendered unduly suggestive simply because the defendant was handcuffed when he was viewed by the witness ( People v Duuvon, supra, at 545; People v Rufino, 198 A.D.2d 7, lv denied 82 N.Y.2d 930). Consequently, the court properly denied the defense motions to suppress the identifications.
To the extent defendants claim that the Allen charge skewed the burden of proof by requiring a juror to explain his views ( People v Antommarchi, 80 N.Y.2d 247), defendants failed to except to this portion of the charge. Thus, their claim is unpreserved and we decline to review it in the interest of justice.
In addition, there is no indication that the two crime scene photographs of the deceased were introduced solely for the purpose of arousing the emotions of the jury and to prejudice defendants ( People v Pobliner, 32 N.Y.2d 356, 370, cert denied 416 U.S. 905). Such evidence, if relevant to an issue at trial, is admissible in the discretion of the trial court ( supra, at 369; People v Stevens, 76 N.Y.2d 833, 835).
We have considered defendants' remaining arguments and find them to be without merit.
Concur — Murphy, P.J., Sullivan, Ross, Williams and Tom, JJ.