People v. Hernandez

2018 NY Slip Op 2023

Opinion

People v Hernandez (2018 NY Slip Op 02023)

People v Hernandez

2018 NY Slip Op 02023

Decided on March 22, 2018

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 22, 2018
Renwick, J.P., Manzanet-Daniels, Kahn, Kern, Singh, JJ.

1254/97

[*1] The People of the State of New York, Respondent,

v

Ramon Hernandez, Defendant-Appellant.

Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (David A. Slott of counsel), for respondent.

Judgment, Supreme County, Bronx County (William C. Donnino, J. at suppression hearing; Denis J. Boyle, J. at plea and sentencing), rendered October 14, 1998, convicting defendant of three counts of criminal sale of a controlled substance in the third degree, and sentencing him to concurrent terms of 1½ to 4½ years, unanimously affirmed.

The court properly denied defendant's motion to suppress a showup identification by an undercover officer. Although 11 days had elapsed from the time of the drug sale until the undercover officer fortuitously recognized defendant on the street, the showup occurred five minutes after the officer's spontaneous identification. Accordingly, the showup was essentially confirmatory, and in any event could not have created a substantial likelihood of irreparable misidentification (see e.g . People v McCray , 298 AD2d 203, 204 [1st Dept 2002], lv denied 99 NY2d 583 [2003]; People v Hewitt , 267 AD2d 326 [2d Dept 1999], lv denied 94 NY2d 903 [2000]).

We have considered and rejected defendant's argument that the undercover officer's testimony about the identification procedure was insufficient to satisfy the People's burden at the hearing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 22, 2018

DEPUTY CLERK