Opinion
11-17-2017
The PEOPLE of the State of New York, Respondent, v. Bryan R. WALKER, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (Janet C. Somes of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Leah R. Mervine of Counsel), for Respondent.
Timothy P. Donaher, Public Defender, Rochester (Janet C. Somes of Counsel), for Defendant–Appellant.
Sandra Doorley, District Attorney, Rochester (Leah R. Mervine of Counsel), for Respondent.
PRESENT: WHALEN, P.J., PERADOTTO, DeJOSEPH, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM:Defendant appeals from a judgment convicting him, upon his plea of guilty, of robbery in the second degree ( Penal Law § 160.10 [2 ][b] ). Supreme Court properly refused to suppress the victim's showup identification of defendant. Contrary to defendant's contention, "the showup was not rendered unduly suggestive because he was handcuffed" during the procedure ( People v. Mack, 135 A.D.3d 962, 963, 24 N.Y.S.3d 381 [2d Dept. 2016], lv. denied 27 N.Y.3d 1002, 38 N.Y.S.3d 111, 59 N.E.3d 1223 [2016] ; see People v. Smith, 128 A.D.3d 1434, 1435, 8 N.Y.S.3d 777 [4th Dept.2015], lv. denied 26 N.Y.3d 1011, 20 N.Y.S.3d 552, 42 N.E.3d 222 [2015] ). Moreover, "the fact that [police] advised the [victim] that a suspect fitting the [perpetrator's] description had been stopped did not invalidate the showup, as this information merely conveyed what a witness of ordinary intelligence would have expected under the circumstances" ( People v. Franqueira, 143 A.D.3d 1164, 1166, 40 N.Y.S.3d 588 [3d Dept.2016] [internal quotation marks omitted]; see People v. Mathis, 60 A.D.3d 1144, 1146, 874 N.Y.S.2d 627 [3d Dept.2009], lv. denied 12 N.Y.3d 927, 884 N.Y.S.2d 708, 912 N.E.2d 1089 [2009] ; see generally 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 contention that the showup identification should have been suppressed because it was not conducted in close temporal proximity to the crime is unpreserved for our review (see People v. Lewis, 97 A.D.3d 1097, 1097–1098, 947 N.Y.S.2d 745 [4th Dept.2012], lv. denied 19 N.Y.3d 1103, 955 N.Y.S.2d 559, 979 N.E.2d 820 [2012] ), and we decline to review it as a matter of discretion in the interest of justice (see CPL 470.15[3][c] ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.