                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: December 8, 2016                   106953
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

JHAFFRE McCLAIN,
                    Appellant.
________________________________


Calendar Date:   October 19, 2016

Before:   Peters, P.J., Garry, Egan Jr., Rose and Mulvey, JJ.

                             __________


      Aaron A. Louridas, Delmar, for appellant, and appellant pro
se.

      P. David Soares, District Attorney, Albany (Michael C.
Wetmore of counsel), for respondent.

                             __________


Peters, P.J.

      Appeal from a judgment of the County Court of Albany County
(Herrick, J.), rendered June 24, 2014, convicting defendant upon
his plea of guilty of the crimes of robbery in the first degree
(two counts) and robbery in the second degree.

      On the evening of July 11, 2013, City of Albany Police
Officer Anthony Scalise and his partner responded to a radio
dispatch of an armed robbery at a club in the City of Albany.
The suspects were described as five or six black males wearing
dark clothing and masks. Upon the officer's arrival, several
victims informed them that the perpetrators had just fled on foot
through the parking lot of a nearby restaurant. After conducting
a quick search of the surrounding area, Scalise and his partner
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returned to the scene of the crime where they obtained additional
information from the victims, including that one of the
perpetrators had stolen a backpack and that another was wearing a
baseball cap bearing a Detroit Lions insignia. While speaking
with the victims, Scalise received a radio transmission
indicating that gunshots had been fired at a location a few
blocks away and that two males wearing dark clothing and carrying
a backpack had been observed running through backyards. Scalise
immediately responded to the location of the reported gunfire
and, while canvassing alleyways and backyards for the fleeing
suspects, he was directed by a bystander to an alleyway. Upon
entering the alley, Scalise observed a black Detroit Lions
baseball cap similar to the one described by the victims of the
armed robbery lying in the grass. He and another officer then
continued down the alley to an adjacent yard where they came upon
two males, one of whom was later identified as defendant. Both
men had scratches on their arms, were "sweating profusely and out
of breath," and one of the men had blood on his shirt. The two
were then ordered to the ground, handcuffed and held at the scene
while Scalise returned to the location of the armed robbery to
speak further with the victims. There, Scalise viewed
surveillance video capturing the robbery and identified
defendant, who was wearing a Detroit Lions baseball cap, as one
of the armed robbers. Defendant and the other individual were
thereafter arrested and transported to the police station, where
one of the victims of the robbery identified defendant from a
photo array as one of the assailants.

      Defendant and four others were subsequently charged with
two counts of robbery in the first degree and one count of
robbery in the second degree. Following a combined
Dunaway/Wade/Mapp/Huntley hearing, County Court denied
defendant's motion to suppress both the physical evidence
recovered from his person and the pretrial identification of him.
Defendant thereafter pleaded guilty as charged and was sentenced
to an aggregate prison term of 11½ years followed by five years
of postrelease supervision. He now appeals, challenging County
Court's denial of his suppression motion.

      We reject defendant's contention that the evidence obtained
by the police was the product of an illegal detention. "Street
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encounters initiated by police are governed by the
well-established graduated four-level test in which, generally
stated, the level of permissible intrusion increases with the
level of evidence of criminality. These encounters can be
'dynamic situations during which the degree of belief possessed
at the point of inception may blossom by virtue of responses or
other matters which authorize . . . additional action as the
scenario unfolds'" (People v Tillery, 60 AD3d 1203, 1204-1205
[2009] [internal citations omitted], lv denied 12 NY3d 860
[2009], quoting People v De Bour, 40 NY2d 210, 225 [1976]; accord
People v Issac, 107 AD3d 1055, 1057 [2013]). In evaluating the
conduct of the police, "we accord great weight to the credibility
determinations made by the suppression court, given its peculiar
advantage of having seen and heard the witnesses" (People v
Issac, 107 AD3d at 1057; see People v Prochilo, 41 NY2d 759, 761
[1977]).

      Here, moments after responding to the scene of the armed
robbery, police received a report of shots fired in an area just
blocks away, observed two men fleeing and were directed by
several bystanders to a location where defendant was discovered.
"Where, as here, police officers find themselves in a rapidly
developing and dangerous situation presenting an imminent threat
to their well-being, they must be permitted to take reasonable
measures" (People v Allen, 73 NY2d 378, 380 [1989] [citation
omitted]; accord People v Stroman, 107 AD3d 1023, 1024 [2013], lv
denied 21 NY3d 1046 [2013]). Given defendant's geographical and
temporal proximity to both the scene of the armed robbery and the
area where shots were fired, the presence of the baseball cap
matching the one reportedly worn by one of the perpetrators and
defendant's physical appearance upon being approached by the
officers, we find that the police possessed reasonable suspicion
that defendant had committed a crime and were therefore
authorized to forcibly stop, frisk and detain him (see People v
Ford, 110 AD3d 1368, 1371 [2013], lv denied 24 NY3d 1043 [2014];
People v Robinson, 101 AD3d 1245, 1245-1246 [2012], lv denied 20
NY3d 1103 [2013]; People v Robinson, 95 AD3d 906, 906 [2012], lv
denied 19 NY3d 1000 [2012]). Once Scalise returned to the
location of the robbery, viewed surveillance of the incident and
determined that defendant was one of the assailants, probable
cause existed for his arrest (see People v Stroman, 107 AD3d at
                              -4-                106953

1024; People v Rose, 72 AD3d 1341, 1345 [2010], lv denied 16 NY3d
745 [2011]).

      Nor are we persuaded that defendant's identification as one
of the assailants was the result of an impermissibly suggestive
police-arranged showup. Accidental showups that result from mere
happenstance do not implicate due process concerns, so long as
the spontaneous encounter was not caused by police misconduct or
questionable police procedures (see People v Dixon, 85 NY2d 218,
223 [1995]; People v Newball, 76 NY2d 587, 591 [1990]). While
being led up a flight of stairs at the police station, one of the
victims of the robbery saw defendant, who was in civilian clothes
and handcuffs, down a hallway approximately 30 feet away.
Shortly thereafter, this witness identified defendant from a
photo array as one of the armed robbers, and remarked, "He's the
same guy I saw in the hallway as we came up the stairs." Upon
our review of the record, we find no basis upon which to disturb
County Court's determination that the station house encounter
between defendant and one of the victims was accidental,
spontaneous and not the product of police misconduct or
questionable police procedures (see People v Brown, 123 AD3d 938,
939 [2014], lv denied 25 NY3d 949 [2015]; People v Rodriguez, 98
AD3d 530, 531-532 [2012], lvs denied 19 NY3d 1105 [2012], 20 NY3d
935 [2012]; People v Gomez, 60 AD3d 782, 783 [2009], lv denied 12
NY3d 845 [2009]; People v Nimmons, 177 AD2d 444, 445 [1991], lv
denied 79 NY2d 922 [1992]).

      Defendant's remaining contentions, raised in his
supplemental pro se brief, are unpreserved for our review.

     Garry, Egan Jr., Rose and Mulvey, JJ., concur.
                        -5-                  106953

ORDERED that the judgment is affirmed.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
