Opinion
KA 00-02735
May 2, 2003.
Appeal from a judgment of Supreme Court, Erie County (Buscaglia, J.), entered November 16, 2000, convicting defendant after a jury trial of criminal possession of a weapon in the third degree.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (JOHN STANWIX, JR., OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (MARCY H. HAGEN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PINE, J.P., WISNER, KEHOE, BURNS, AND GORSKI, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Supreme Court properly denied defendant's motion seeking to suppress the showup identifications of two witnesses. We reject defendant's contention that the showup procedure was unnecessary and that a lineup should have been conducted. "[I]t is well settled that a showup identification is not improper merely because the police already have probable cause to detain a suspect" ( People v. Davis, 232 A.D.2d 154, 154, lv denied 89 N.Y.2d 941, 1091). The showup procedure here "was in proximity to the time and place of the crime and thus was properly conducted in the interest of prompt identification" ( People v. Amin, 294 A.D.2d 863, 864, lv denied 98 N.Y.2d 672, 674). We further reject defendant's contentions that the showup procedure was unduly suggestive because defendant was standing outside an unmarked police car in the presence of police officers ( see People v Boyd, 272 A.D.2d 898, 899, lv denied 95 N.Y.2d 850; People v. Aponte, 222 A.D.2d 304, 304-305, lv denied 88 N.Y.2d 980; see also People v. Duuvon, 77 N.Y.2d 541, 545) and one of the two witnesses knew that a suspect was in custody ( see People v. Rodriguez, 64 N.Y.2d 738, 739). Defendant's additional contention that the showup involving the other witness was terminated prematurely goes to the weight and not the admissibility of the identification of defendant by that witness. We further conclude that the verdict convicting defendant of criminal possession of a weapon in the third degree (Penal Law 265.02) is not against the weight of the evidence ( see People v. Bleakley, 69 N.Y.2d 490, 495; see also People v. Totten, 161 A.D.2d 678), and the sentence is not unduly harsh or severe.