Opinion
6083 Ind. 1254/97
03-22-2018
The PEOPLE of the State of New York, Respondent, v. Ramon HERNANDEZ, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (David A. Slott of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (David A. Slott of counsel), for respondent.
Renwick, J.P., Manzanet–Daniels, Kahn, Kern, Singh, JJ.
Judgment, Supreme County, Bronx County (William C. Donnino, J. at suppression hearing; Denis J. Boyle, J. at plea and sentencing), rendered October 14, 1998, convicting defendant of three counts of criminal sale of a controlled substance in the third degree, and sentencing him to concurrent terms of 1 ½ to 4 ½ years, unanimously affirmed.
The court properly denied defendant's motion to suppress a showup identification by an undercover officer. Although 11 days had elapsed from the time of the drug sale until the undercover officer fortuitously recognized defendant on the street, the showup occurred five minutes after the officer's spontaneous identification. Accordingly, the showup was essentially confirmatory, and in any event could not have created a substantial likelihood of irreparable misidentification (see e. g. People v. McCray, 298 A.D.2d 203, 204, 748 N.Y.S.2d 722 [1st Dept. 2002], lv denied 99 N.Y.2d 583, 755 N.Y.S.2d 719, 785 N.E.2d 741 [2003] ; People v. Hewitt, 267 A.D.2d 326, 699 N.Y.S.2d 882 [2d Dept. 1999], lv denied 94 N.Y.2d 903, 707 N.Y.S.2d 388, 728 N.E.2d 987 [2000] ).
We have considered and rejected defendant's argument that the undercover officer's testimony about the identification procedure was insufficient to satisfy the People's burden at the hearing.