People v. GilleyPeople v. Gilley
McCarthy, J.
Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered April 9, 2015, upon a verdict convicting defendant of the crimes of robbery in the first degree and robbery in the second degree.
Late one night while the victim was walking home on a city street, two men emerged from a double-parked car and robbed him at gunpoint. The victim alerted police who, minutes later, apprehended four suspects in a car that matched the description given by the victim. Defendant, who was one of those suspects, was charged by indictment with robbery in the first degree and robbery in the second degree. After a jury convicted him of both counts, County Court sentenced him to an аggregate prison term of 17 years, with five years of postrelease supervision. Defendant appeals.
The verdict was not against the weight of thе evidence. Defendant does not contest the evidence supporting his conviction of robbery in the second degree. As relevant here, “[а] person is guilty of robbery in the first degree when he [or she] forcibly steals property and when, in the course of the commission of the crime . . ., [that persоn] or another participant in the crime . . . [d]isplays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm; excеpt that . . . it is an affirmative defense that such . . . firearm was not a loaded weapon from which a shot, readily capable of producing death or other serious physical injury, could be discharged” (
The victim testified that defendant and a codefendant approached him, defendant told him to be quiet while the codefendant held a gun, and the two men rifled through his pockets and took his belongings. This evidence, which was supported by testimony of another individual who remained in the car during the encounter, established the elements of robbery in the first degree. The police also recovered a sаwed-off shotgun, which was proven operable by test firing and was admitted into evidence. Defendant asserts that the weight of the evidence does not support his conviction of robbery in the first degree based on a lack of proof that the gun was loaded, but the People were not required to submit such proof. Although the gun was not loaded when it was recovered by police, defendant did not meet his burden of establishing his affirmative defense becausе the record contains evidence from which the jury could have believed that the gun was loaded at the time of the incident (see People v Thompson, 147 AD3d 1298, 1300 [2017], lvs denied 29 NY3d 1030, 1037 [2017]; People v Brown, 81 AD3d 499, 500 [2011], lv denied 17 NY3d 792 [2011]; People v Carter, 74 AD3d 1375, 1377 [2010], lvs denied 15 NY3d 772 [2010]; People v Williams, 15 AD3d 244, 245 [2005], lv denied 5 NY3d 771 [2005]).
County Court did not err in denying defendant‘s motion to preclude the People from introducing evidence that the victim previously identified defendant. “A showup identification is permissible so long as it was reasonable under the circumstances — that is, when conducted in close geographic and temporal proximity to the crime — аnd the procedure used was not unduly suggestive” (People v Brewer, 155 AD3d 1447, 1447-1448 [2017] [internal quotation marks and citation omitted]; see People v Ortiz, 90 NY2d 533, 537 [1997]; People v Mathis, 60 AD3d 1144, 1145-1146 [2009], lv denied 12 NY3d 927 [2009]). Although the People bear the initial burden of demonstrating that the showup procedure was reasonable under the circumstances, “the defendant bears the ultimate burden of proving that [it] is unduly suggestive and subject to suppression” (People v Ortiz, 90 NY2d at 537).
The evidence at the Wade hearing established that, less than 20 minutes after the robbery, a police officer transported the victim to a location less than two miles from the scene of the incident, where other police officers had stopped a vehicle matching the description given by the victim. The officer testified that the four suspects were presented one at a time by being brought into a spotlight across the street from the victim. For each individual, the officer asked whether the victim recоgnized him. Defendant did not recognize the first two people, but identified the codefendant as the person who had the gun and defendant as the other person involved in the robbery. Given the hearing testimony, the People satisfied their burden of demonstrating that the showup procedure was conducted in сlose geographic and temporal proximity to the crime (see People v Arce, 150 AD3d 1403, 1405 [2017], lv denied 29 NY3d 1090 [2017]; People v Vaughn, 135 AD3d 1158, 1159 [2016], lv denied 27 NY3d 1076 [2016]; see also People v Howard, 22 NY3d 388, 402-403 [2013]). Moreover, that the suspects were presented to the victim in handcuffs and in the presence of police did not render the showup procedure unduly suggestive (see People v Brewer, 155 AD3d at 1448; People v Coleman, 144 AD3d 1197, 1198-1199 [2016]; People v Franqueira, 143 AD3d 1164, 1166 [2016]; People v August, 33 AD3d 1046, 1048-1049 [2006], lv denied 8 NY3d 878 [2007]; People v Woodridge, 30 AD3d 898, 899 [2006], lv denied 7 NY3d 852 [2006]).
Alternatively, defendant argues that County Court should have reopenеd the Wade hearing during trial in light of the victim‘s trial testimony that, en route to the scene of the traffic stop, officers told the victim that they had captured his attaсkers and he saw the suspects all together before they were presented individually. “A trial court may reopen a pretrial hearing if it ‘is satisfied, upon a showing by the defendant, that additional pertinent facts have been discovered by the defendant which he [or she] could not have discovered with rеasonable diligence before the determination’ of his [or her] pretrial application” (People v Fuentes, 53 NY2d 892, 894 [1981], quoting
County Court did not abuse its discretion by refusing to reopеn the Wade hearing (see People v Clark, 88 NY2d 552, 555-556 [1996]). It is unclear whether defendant could, with reasonable diligence, have discovered the victim‘s account of the showup procedure prior to the initial Wade hearing (see
The People did not bolster the victim‘s identification of defendant through questions posed to the officer who conducted the showup procedure. In response to the victim‘s testimony that called that procedure into question, the People asked the officer about the procedure utilized, but did not elicit testimony on direct examination about the victim‘s identification of defendant. This was not impropеr bolstering (compare People v Trowbridge, 305 NY 471, 474-478 [1953]; People v Jones, 75 AD2d 607, 607 [1980]; see generally People v Smith, 22 NY3d 462, 466 [2013]).
County Court appropriately exercised its discretion when it denied defendant‘s post-summation request to testify. ”
We have reviewed defendant‘s remaining contentions and find them to be without merit.
Garry, P.J., Clark, Rumsey and Pritzker, JJ., concur.
ORDERED that the judgment is affirmed.