BURNICE, CHAZERAE M., PEOPLE v ( 2014 )


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  •         SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    1343
    KA 10-00384
    PRESENT: SMITH, J.P., FAHEY, LINDLEY, SCONIERS, AND WHALEN, JJ.
    THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT
    V                             MEMORANDUM AND ORDER
    CHAZERAE M. BURNICE, DEFENDANT-APPELLANT.
    TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANE I. YOON OF
    COUNSEL), FOR DEFENDANT-APPELLANT.
    SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (AMANDA L. DREHER OF
    COUNSEL), FOR RESPONDENT.
    Appeal from a judgment of the Monroe County Court (Patricia D.
    Marks, J.), rendered September 14, 2009. The judgment convicted
    defendant, upon his plea of guilty, of assault in the second degree.
    It is hereby ORDERED that the judgment so appealed from is
    unanimously reversed on the law, the plea is vacated, that part of the
    motion seeking to suppress showup identification testimony with
    respect to defendant is granted and the matter is remitted to Monroe
    County Court for further proceedings in accordance with the following
    Memorandum: On appeal from a judgment convicting him, upon a guilty
    plea, of assault in the second degree (Penal Law § 120.05 [2]),
    defendant contends that County Court erred in refusing to suppress
    showup identification testimony with respect to him. We agree.
    “Showup identifications are disfavored, since they are suggestive by
    their very nature” (People v Ortiz, 90 NY2d 533, 537; see People v
    Johnson, 81 NY2d 828, 831). Here, the showup identification procedure
    was conducted in the parking lot of a police station, approximately 90
    minutes after the occurrence of the crime, while defendant was
    handcuffed and while uniformed police officers and ambulance personnel
    were in the parking lot. The totality of the circumstances of this
    showup identification procedure presses judicial tolerance beyond its
    limits (cf. People v Duuvon, 77 NY2d 541, 545; People v Hunt, 277 AD2d
    911, 911-912), and we conclude under the facts and circumstances of
    this case that the showup identification procedure was infirm (cf.
    Duuvon, 77 NY2d at 544).
    Inasmuch as the witness who identified defendant at the showup
    identification procedure did not testify at the Wade hearing, the
    People did not establish that such witness had an independent basis
    for his in-court identification of defendant (see People v Hill, 53
    AD3d 1151, 1151). We thus conclude that defendant is entitled to a
    new Wade hearing on that issue (see id. at 1151-1152; see generally
    -2-                          1343
    KA 10-00384
    People v Burts, 78 NY2d 20, 22-23). We therefore reverse the judgment
    and, because the motion was made by defendant and his codefendant, we
    grant only that part of the motion with respect to defendant and remit
    the matter to County Court for further proceedings, including a new
    Wade hearing on the issue whether the witness has an independent basis
    for his in-court identification of defendant, if the People are so
    advised. In light of our determination, we do not address defendant’s
    remaining contention.
    Entered:   January 3, 2014                      Frances E. Cafarell
    Clerk of the Court
    

Document Info

Docket Number: KA 10-00384

Filed Date: 1/3/2014

Precedential Status: Precedential

Modified Date: 10/8/2016