People v. Guitierres

As developed at a Dunaway/Wade hearing (see Dunaway v New York, 442 US 200 [1979]; United States v Wade, 388 US 218 [1967]), on December 29, 2008, at approximately 1:55 a.m., the complainant informed the police that “he had just been robbed by approximately five to six” Hispanic males. Thereupon, the police and the complainant proceeded to conduct a canvass of the surrounding area. During this canvass, without any prompting by the police, the complainant pointed to two groups of individúals on the street and stated, “that’s them, those are them over there.” One of the groups, which consisted of three individuals, was “cut off’ by a police van (hereinafter the first group). Two individuals in the other group (hereinafter the second group) ran away. The complainant was asked by a police officer if the individuals in the first group were involved in the robbery. The complainant stated that “he wasn’t too sure.” The police officer then stated to the complainant, “I want you to understand something[,] I can’t arrest somebody when you say you’re not sure. Either they did or they didn’t. I need you to take a good look at them and let me know one by one if they were involved or not involved.” At this point, the complainant looked at all three individuals “slowly” and “deliberately,” and stated that all three individuals were involved in the robbery. The defendant Oscar Guitierres was one of the three individuals identified by the complainant.

The defendant Brandon Abriz, who was one of the individuals in the second group, was subsequently brought to the complainant for a showup identification. When the complainant was asked if Abriz was involved in the robbery, the complainant initially stated that “he wasn’t sure.” The police officer told the complainant, “it’s either yes or no. I need you to take a good look at him and make sure whether it’s yes or no.” The complainant then took a “good look” at Abriz, and identified him as being involved in the robbery.

The complainant identified Guitierres and Abriz approximately four blocks away from the crime scene. Further, the time that elapsed from the start of the canvass to when the complainant “pointed out” Guitierres and Abriz “[cjouldn’t have been more than a minute. It all happened very fast.”

At the conclusion of the hearing, the Supreme Court granted those branches of the defendants’ separate omnibus motions which were to suppress evidence of showup identifications and potential in-court identifications. We reverse.

While showup procedures are generally disfavored, they are permissible where, as in this case, they are employed in close spatial and temporal proximity to the commission of the crime for the purpose of securing a prompt and reliable identification (see People v Ortiz, 90 NY2d 533, 537 [1997]; People v Duuvon, 77 NY2d 541, 544 [1991]; People v Hicks, 78 AD3d 1075 [2010]; People v McKinnon, 78 AD3d 864 [2010], lv denied 16 NY3d 744 [2011]; People v Mais, 71 AD3d 1163, 1165 [2010]; People v Gonzalez, 57 AD3d 560, 561 [2008]). Here, the People met their initial burden of establishing the reasonableness of the police conduct and the lack of undue suggestiveness (see People v Ortiz, 90 NY2d at 537).

Under the circumstances of this case, the defendant failed to satisfy his burden of proving that the procedure was unduly suggestive and subject to suppression (id.). The police officer’s statements did not render the showup identification procedures unduly suggestive. The subject statements made by the police officer to the complainant were balanced and did not pressure the complainant to make positive identifications (see People v Elliot, 283 AD2d 183, 183-184 [2001]; People v Barham, 216 AD2d 477, 478 [1995]; People v Jeffries, 125 AD2d 412 [1986]). Unlike the showup identification of the defendant in People v McNeil (39 AD3d 206, 209 [2007]), wherein the police told an informant “beforehand that ‘they had gotten the person’ and ‘needed to make sure’ it was the person he had seen,” here, there was no suggestion by the police that any of the individuals present had been involved in the crime. Accordingly, it was error to suppress the showup identifications and potential in-court identifications. In light of our determination, the matter must be remitted to the Supreme Court, Kings County, for further proceedings on the indictment (see People v Williams, 73 AD3d 1097, 1100 [2010]). Rivera, J.E, Leventhal and Roman, JJ., concur.