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

727
KA 12-01776
PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, VALENTINO, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

IRA WILLIAMS, DEFENDANT-APPELLANT.


LINDA M. CAMPBELL, SYRACUSE, FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Onondaga County
(John J. Brunetti, A.J.), rendered September 12, 2011. The judgment
convicted defendant, upon his plea of guilty, of attempted burglary in
the second degree and conspiracy in the fourth 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, inter alia, attempted burglary in the
second degree (Penal Law §§ 110.00, 140.25 [2]). Defendant contends
that the showup identification procedure was unduly suggestive because
he was standing next to a codefendant known to the victim and the
People failed to demonstrate that the showup identification procedure
was conducted in temporal proximity to the crime. Although defendant
failed to preserve the latter contention for our review (see CPL
470.05 [2]; People v Lewis, 97 AD3d 1097, 1097-1098, lv denied 19 NY3d
1103), we conclude in any event that both contentions lack merit.
“Although showup identification procedures are generally disfavored .
. . , such procedures are permitted ‘where [they are] reasonable under
the circumstances—that is, when conducted in close geographic and
temporal proximity to the crime—and the procedure used was not unduly
suggestive’ ” (Lewis, 97 AD3d at 1098). Although one suspect was
known to the victim, the victim identified defendant independently,
relying on his skin tone and distinctive hairstyle, such that there is
no reason to disturb Supreme Court’s suppression ruling on that ground
(see People v Brisco, 99 NY2d 596, 597). Furthermore, with respect to
defendant’s contention concerning temporal proximity, the People
established at the Wade hearing that the showup identification
procedure was reasonable because it was conducted within 20 to 30
minutes from the initial report of the crime and suspects fleeing, and
“in the course of a continuous, ongoing investigation” (People v
Bassett, 112 AD3d 1321, 1322). Contrary to defendant’s further
                                 -2-                            727
                                                          KA 12-01776

contention, the sentence is not unduly harsh or severe.




Entered:   June 20, 2014                        Frances E. Cafarell
                                                Clerk of the Court
