Opinion
2013-02397 Ind. No. 8601/10.
01-27-2016
The PEOPLE, etc., respondent, v. Darren MACK, appellant.
Lynn W.L. Fahey, New York, N.Y. (Leila Hull of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Ann Bordley of counsel; Amanda Regan on the brief), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Leila Hull of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Ann Bordley of counsel; Amanda Regan on the brief), for respondent.
Opinion
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Garnett, J.), rendered February 14, 2013, convicting him of robbery in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Ingram, J.), of that branch of the defendant's omnibus motion which was to suppress identification evidence.
ORDERED that the judgment is affirmed.
The defendant contends that the hearing court improperly denied that branch of his omnibus motion which was to suppress the showup identification made by the complainant near the scene of the crime. That contention is without merit. “While the defendant bears the ultimate burden of proving that a showup procedure is unduly suggestive and subject to suppression, the burden is on the People first to produce evidence validating the admission of such evidence” (People v. Ortiz, 90 N.Y.2d 533, 537, 664 N.Y.S.2d 243, 686 N.E.2d 1337; see People v. Chipp, 75 N.Y.2d 327, 335, 553 N.Y.S.2d 72, 552 N.E.2d 608). The People's burden of production consists of two elements. First, “the People must demonstrate that the showup was reasonable under the circumstances. Proof that the showup was conducted in close geographic and temporal proximity to the crime will generally satisfy this element of the People's burden” (People v. Ortiz, 90 N.Y.2d at 537, 664 N.Y.S.2d 243, 686 N.E.2d 1337). Second, the People must produce “some evidence relating to the showup itself, in order to demonstrate that the procedure was not unduly suggestive” (id.). Once the People have met their two-fold burden, the burden shifts to the defendant to show “that the identification procedure was unduly suggestive and subject to suppression” (People v. Calero, 105 A.D.3d 864, 865, 962 N.Y.S.2d 665; see People v. Dabreo, 108 A.D.3d 731, 732, 968 N.Y.S.2d 901; People v. Mitchell, 185 A.D.2d 249, 251, 585 N.Y.S.2d 783).
Here, the People demonstrated that the showup was reasonable under the circumstances by presenting proof that it was conducted within approximately 25 minutes of the crime and within two miles of the crime scene (see People v. Hudson, 71 A.D.3d 1046, 1047, 900 N.Y.S.2d 66; People v. Rodgers, 6 A.D.3d 464, 465, 774 N.Y.S.2d 349; People v. Yearwood, 197 A.D.2d 554, 602 N.Y.S.2d 206). They also met their burden of establishing the lack of any undue suggestiveness through the testimony of the detective who transported the complainant to the showup and who provided a detailed account of the physical circumstances of the procedure (see People v. Jerry, 126 A.D.3d 1001, 1002, 4 N.Y.S.3d 317; People v. Ervin, 118 A.D.3d 910, 911, 987 N.Y.S.2d 454). The defendant then failed to satisfy the ultimate burden of proving that the showup procedure was unduly suggestive and subject to suppression. Contrary to the defendant's contention, the showup was not rendered unduly suggestive because he was handcuffed and in the presence of uniformed police officers and police cars (see People v. Jerry, 126 A.D.3d 1001, 1002, 4 N.Y.S.3d 317; People v. Charles, 110 A.D.3d 1094, 1096, 973 N.Y.S.2d 763; People v. Gonzalez, 57 A.D.3d 560, 561, 868 N.Y.S.2d 302), or because it took place in the vicinity of a car crash involving the vehicle used to flee the scene of the crime (see People v. Berry, 50 A.D.3d 1047, 1048, 856 N.Y.S.2d 228; People v. James, 2 A.D.3d 751, 768 N.Y.S.2d 648).
The defendant's contention that the Supreme Court failed to administer the oath required by CPL 270.15(1)(a) to prospective jurors is unpreserved for appellate review (see People v. Lyons, 94 A.D.3d 1020, 1020, 942 N.Y.S.2d 213; People v. Cobb, 77 A.D.3d 673, 673, 908 N.Y.S.2d 448). The defendant did not draw the Supreme Court's attention to the alleged error and has failed to present an adequate record in support of his claim (see People v. Lyons, 94 A.D.3d at 1020, 942 N.Y.S.2d 213; People v. Hampton, 64 A.D.3d 872, 877, 883 N.Y.S.2d 338; cf. People v. Hoffler, 53 A.D.3d 116, 121, 860 N.Y.S.2d 266).
The defendant's contention that he was deprived of the effective assistance of counsel is based, in part, on matter appearing on the record and, in part, upon matter outside the record, and thus constitutes a “mixed claim of ineffective assistance” (People v. Maxwell, 89 A.D.3d 1108, 1109, 933 N.Y.S.2d 386). In this case, it is not evident from the matter appearing on the record that the defendant was deprived of the effective assistance of counsel (cf. People v. Crump, 53 N.Y.2d 824, 825, 440 N.Y.S.2d 170, 422 N.E.2d 815). Since the defendant's claim of ineffective assistance of counsel cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety (see People v. Crosby, 133 A.D.3d 681, 20 N.Y.S.3d 100; People v. Donovan, 133 A.D.3d 615, 20 N.Y.S.3d 96; People v. Adamson, 131 A.D.3d 701, 703, 15 N.Y.S.3d 452).