People v. Brisco , 741 N.Y.S.2d 50 ( 2002 )

Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (Mullen, J.), rendered August 1, 2000, convicting him of attempted burglary in the second degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress identification testimony.

Ordered that the judgment is affirmed.

Contrary to the defendant’s contention, the showup identification was proper. The defendant was not handcuffed at the time of the showup, and there is no indication that the police told the complainant that a suspect was in custody before her identification. Moreover, the complainant, who was inside the house at the time, was only asked if she recognized anyone standing outside. Finally, the showup was conducted in close temporal and geographical proximity to the crime scene (see People v McBride, 242 AD2d 482).

The defendant argues that the showup was improper because he was asked to hold up a pair of shorts during the identification. We disagree. Although the defendant was told to hold up the shorts based upon the complainant’s information that the person she observed running from the house was wearing shorts, we note that, before the showup, the defendant admitted that the shorts in question belonged to him, and that the defendant was not actually required to wear these shorts at the time of the showup. Thus, we do not agree with the opinion of our dissenting colleague that the showup identification was unduly suggestive (cf. People v Edmonson, 75 NY2d 672, 677, cert denied 498 US 1001).

Accordingly, the court properly denied that branch of the defendant’s omnibus motion which was to suppress this identification testimony (see People v Wells, 221 AD 2d 281; People v Duuvon, 77 NY2d 541). Santucci, J.P., Smith and Friedmann, JJ., concur.