Opinion
No. KA 06-01619.
April 25, 2008.
Appeal from a judgment of the Supreme Court, Niagara County (Richard C. Kloch, Sr., A.J.), rendered July 18, 2005. The judgment convicted defendant, upon a jury verdict, of robbery in the first degree and criminal possession of a weapon in the third degree.
DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (JOSEPH G. FRAZIER OF COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF COUNSEL), FOR RESPONDENT.
Present: Scudder, P.J., Hurlbutt, Centra, Green and Gorski, JJ.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial of robbery in the first degree (Penal Law § 160.15) and criminal possession of a weapon in the third degree (§ 265.02 [1]). Contrary to the contention of defendant, County Court (Peter L. Broderick, Sr., J.) properly determined that the People established defendant's competency to stand trial by a preponderance of the evidence ( see People v Aponte, 34 AD3d 298, lv denied 8 NY3d 843; People v Garrasi, 302 AD2d 981, 982, lv denied 100 NY2d 538; see generally People v Mendez, 1 NY3d 15, 19-20). Although conflicting testimony was presented at the competency hearing, the court's findings are entitled to great deference ( see Garrasi, 302 AD2d at 982; People v Brow, 255 AD2d 904), and the opinions of two court-appointed psychiatric experts and the court's own opportunity to observe defendant during the judicial proceedings support the conclusion that defendant had a " `sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding . . . and . . . a rational as well as factual understanding of the proceedings against him'" ( Dusky v United States, 362 US 402, 402 [I960]; see Mendez, 1 NY3d at 19).
We reject defendant's further contention that the showup identification procedure was unduly suggestive. The showup was conducted in geographical and temporal proximity to the crime ( see generally People v Ortiz, 90 NY2d 533, 537), and it was not rendered unduly suggestive by the fact that defendant was handcuffed and seated in a patrol car when he was identified ( see People v Armstrong, 11 AD3d 721, 722, lv denied 4 NY3d 760). Finally, there is no support in the record for the contention of defendant that Supreme Court (Richard C. Kloch, Sr., A.J.) acted vindictively in sentencing him ( see People v Lewis, 292 AD2d 814, 815, lv denied 98 NY2d 677; see generally People v Pena, 50 NY2d 400, 411-412, rearg denied 51 NY2d 770, cert denied 449 US 1087), and the sentence is not unduly harsh or severe.