People v. Johnson

Nov 15, 1995
Versions:221 A.D.2d 1016
633 N.Y.S.2d 789
1995 N.Y. App. Div. LEXIS 13544

—Judgment unani*1017mously affirmed. Memorandum: Supreme Court properly denied the motion of defendant to suppress evidence of the victim’s showup identification of him. The showup was held at the scene and within a short period of time after the shooting incident. Although the victim was in the presence of another witness (see, People v Duuvon, 77 NY2d 541, 545; People v Love, 57 NY2d 1023, 1024; People v Adams, 53 NY2d 241, 249; People v Jenkins, 175 AD2d 648, 649, lv denied 78 NY2d 1012) and defendant was in handcuffs in police custody (see, People v Jones, 149 AD2d 970, lv denied 74 NY2d 742), the showup procedures were tolerable in the interest of prompt identification.

The court did not abuse its discretion in denying defendant’s motion for youthful offender treatment because defendant’s participation in the incident was not "relatively minor” (see, CPL 720.10 [2] [a]; [3] [ii]). In light of defendant’s prior youthful offender adjudication, the violent nature of the incident and defendant’s lack of remorse, we decline to exercise our power to modify the sentence as a matter of discretion in the interest of justice (see, CPL 470.15 [6] [b]). (Appeal from Judgment of Supreme Court, Monroe County, Bergin, J.—Robbery, 1st Degree.) Present—Green, J. P., Lawton, Callahan, Doerr and Davis, JJ.