        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
