Opinion
9780 Ind. 4178/15
07-02-2019
The PEOPLE of the State of New York, Respondent, v. Emil GODING, Defendant-Appellant.
Cardozo Criminal Appeals Clinic, New York (Stanley Neustadter of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Ellen Stanfield Friedman of counsel), for respondent.
Cardozo Criminal Appeals Clinic, New York (Stanley Neustadter of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Ellen Stanfield Friedman of counsel), for respondent.
Richter, J.P., Tom, Gesmer, Kern, Moulton, JJ.
The hearing court properly denied defendant's motion to suppress identification testimony. The showup identification was justified by its close spatial and temporal proximity to the robbery (see People v. Duuvon, 77 N.Y.2d 541, 544–545, 569 N.Y.S.2d 346, 571 N.E.2d 654 [1991] ). Defendant did not preserve any of his present arguments regarding allegedly suggestive features of the identification, and we decline to review them in the interest of justice. As an alternative holding, we also reject them on the merits.
Even if the victim heard a radio transmission that a suspect had been apprehended, this did not render the identification suggestive, because that transmission "merely conveyed what a witness of ordinary intelligence would have expected under the circumstances" ( People v. Williams, 15 A.D.3d 244, 245, 789 N.Y.S.2d 155 [1st Dept. 2005] lv denied 5 N.Y.3d 771, 801 N.Y.S.2d 266, 834 N.E.2d 1275 [2005] ), and "[i]nherent in any showup is the likelihood that an identifying witness will realize that the police are displaying a person they suspect of committing the crime, rather than a person selected at random" ( People v. Gatling, 38 A.D.3d 239, 240, 831 N.Y.S.2d 157 [1st Dept. 2007], lv denied 9 N.Y.3d 865, 840 N.Y.S.2d 894, 872 N.E.2d 1200 [2007] ). Defendant's remaining arguments are improperly based on trial, rather than hearing, testimony (see People v. Abrew, 95 N.Y.2d 806, 808, 710 N.Y.S.2d 833, 732 N.E.2d 940 [2000] ), and in any event would not warrant suppression (see Gatling, 38 A.D.3d at 240, 831 N.Y.S.2d 157 ).