SWAIN, ELISHA R., PEOPLE v ( 2013 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
833
KA 11-01826
PRESENT: SCUDDER, P.J., SMITH, CENTRA, FAHEY, AND PERADOTTO, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
ELISHA R. SWAIN, DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SHERRY A. CHASE OF
COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID PANEPINTO OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Erie County Court (Sheila A.
DiTullio, J.), rendered April 26, 2011. The judgment convicted
defendant, upon his plea of guilty, of robbery in the first degree and
criminal possession of a weapon in the second degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him,
upon his plea of guilty, of robbery in the first degree (Penal Law §
160.15 [4]) and criminal possession of a weapon in the second degree
(§ 265.03 [3]). Defendant contends that County Court erred in
refusing to suppress identification testimony arising from an unduly
suggestive showup identification procedure. We reject that
contention. The showup identification procedure took place within 30
minutes of the robbery, in proximity to where the robbery occurred and
“in the context of a continuous, ongoing investigation,” which was
sufficient to establish that the showup procedure was reasonable under
the circumstances (People v Brisco, 99 NY2d 596, 597; see People v
Lewis, 97 AD3d 1097, 1098, lv denied 19 NY3d 1103; People v Jacob, 94
AD3d 1142, 1144, lv denied 19 NY3d 962). The showup was not rendered
unduly suggestive by the victim’s observation of portions of the
police investigation or the fact that defendant was in the presence of
police officers when the victim identified him (see People v Santiago,
83 AD3d 1471, 1471, lv denied 17 NY3d 800; People v Grant, 77 AD3d
558, 558, lv denied 16 NY3d 831). Contrary to defendant’s further
contention, the court did not err in limiting defendant’s cross-
examination of the victim concerning his observations of defendant at
the time of the robbery. The purpose of a Wade hearing is “to test
identification testimony for taint arising from official suggestion
during ‘police-arranged confrontations between a defendant and an
eyewitness’ ” (People v Dixon, 85 NY2d 218, 222, quoting People v
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KA 11-01826
Gissendanner, 48 NY2d 543, 552), and the court did not abuse its
discretion in refusing to permit defendant to cross-examine the victim
on an issue that was not material to that inquiry (see generally
People v Bryant, 73 AD3d 1442, 1443, lv denied 15 NY3d 850; People v
Snell, 234 AD2d 986, 986, lv denied 89 NY2d 1015).
Finally, we reject defendant’s contention that the court erred in
refusing to suppress physical evidence seized from his basement
following a warrantless search of the house where he resided with his
mother. After the police accompanied defendant into the house so that
he could retrieve his jacket and boots, defendant’s mother verbally
consented to the search of the house, led the officers into the
basement, and signed a written consent to search the premises. The
record establishes that the mother freely and voluntarily consented to
the search of the residence (see People v Santiago, 41 AD3d 1172,
1173-1174, lv denied 9 NY3d 964; People v Adams, 244 AD2d 897, 898, lv
denied 91 NY2d 887).
Entered: September 27, 2013 Frances E. Cafarell
Clerk of the Court