        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1348
KA 09-00285
PRESENT: SMITH, J.P., FAHEY, LINDLEY, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RONALD S. SAMUELS, JR., DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DREW R. DUBRIN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (AMANDA L. DREHER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Francis A. Affronti, J.), rendered January 13, 2009. The judgment
convicted defendant, upon a jury verdict, of assault in the second
degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him upon a jury
verdict of assault in the second degree (Penal Law § 120.05 [2]),
defendant contends that Supreme Court erred in denying his request to
charge assault in the third degree as a lesser included offense (see
generally People v Glover, 57 NY2d 61, 63). Viewing the evidence in
the light most favorable to defendant, as we must (see People v
Burnett, 100 AD3d 1561, 1562), we reject that contention (see
generally People v Freeman, 46 AD3d 1375, 1376, lv denied 10 NY3d 840;
People v Saunders, 292 AD2d 780, 780, lv denied 98 NY2d 681).

     Contrary to defendant’s further contention, “the police had
reasonable suspicion to stop and detain him for a showup
identification procedure based on the totality of the circumstances,
including ‘a radio transmission providing a general description of the
perpetrator[] of [the] crime[,] . . . the . . . proximity of the
defendant to the site of the crime, the brief period of time between
the crime and the discovery of the defendant near the location of the
crime, and the [officer’s] observation of the defendant, who matched
the radio-transmitted description’ ” (People v Casillas, 289 AD2d
1063, 1064, lv denied 97 NY2d 752; see People v Bolden, 109 AD3d 1170,
1172; People v Knight, 94 AD3d 1527, 1529, lv denied 19 NY3d 998).
Also contrary to defendant’s contention, he was not under arrest at
the time that he was handcuffed and transported in a police vehicle to
the nearby crime scene for a showup identification procedure (see
                                 -2-                          1348
                                                         KA 09-00285

People v Galloway, 40 AD3d 240, 240-241, lv denied 9 NY3d 844; see
also People v McCoy, 46 AD3d 1348, 1349, lv denied 10 NY3d 813).
Finally, we conclude that “[t]he police had probable cause to arrest
defendant after the victim [and a security officer] identified him
during the showup identification procedure” (People v Dumbleton, 67
AD3d 1451, 1452, lv denied 14 NY3d 770).




Entered:   January 3, 2014                      Frances E. Cafarell
                                                Clerk of the Court
