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

222
KA 09-00307
PRESENT: SCUDDER, P.J., SMITH, FAHEY, CARNI, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

STEFAN E. LEWIS, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES ECKERT OF
COUNSEL), FOR DEFENDANT-APPELLANT.

STEFAN E. LEWIS, DEFENDANT-APPELLANT PRO SE.

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (GEOFFREY KAEUPER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Frank P.
Geraci, Jr., J.), rendered August 27, 2008. The judgment convicted
defendant, upon his plea of guilty, of murder in the second 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 murder in the second degree (Penal Law §
125.25 [3] [felony murder]). Contrary to the People’s contention,
defendant did not forfeit his right to appeal by pleading guilty after
County Court issued an oral suppression ruling but before a written
order thereon had been issued; “an appeal does lie from an oral
‘order’ ” (People v Elmer, ___ NY3d ___, ___ [June 27, 2012]).
Defendant contended at the suppression hearing that the showup
identification procedure was unduly suggestive because the store clerk
who made the identification did not see the robbers’ faces, which were
covered. Thus, defendant failed to preserve for our review his
present contentions that the court erred in failing to suppress the
showup identification on the grounds that the People failed to
demonstrate that the showup identification procedure was conducted in
temporal proximity to the crime and that the showup identification
procedure was unnecessary because the police already had probable
cause to arrest him in connection with an earlier robbery (see CPL
470.05 [2]).

     In any event, we conclude that defendant’s present contentions
lack merit. Although showup identification procedures are generally
disfavored (see People v Ortiz, 90 NY2d 533, 537), such procedures are
permitted “where [they are] reasonable under the circumstances—that
                                 -2-                           222
                                                         KA 09-00307

is, when conducted in close geographic and temporal proximity to the
crime—and the procedure used was not unduly suggestive” (People v
Brisco, 99 NY2d 596, 597; see Ortiz, 90 NY2d at 537; People v Jackson,
78 AD3d 1685, 1685-1686, lv denied 16 NY3d 743). Here, the showup
identification procedure was reasonable because it was conducted at
the scene of the crime, within 95 minutes of the commission of the
crime and in the course of a “continuous, ongoing investigation”
(Brisco, 99 NY2d at 597; see People v Santiago, 83 AD3d 1471, lv
denied 17 NY3d 800; People v Boyd, 272 AD2d 898, 899, lv denied 95
NY2d 850). Further, a showup identification procedure is not improper
“merely because the police already have probable cause to detain a
suspect” (People v Davis, 232 AD2d 154, 154, lv denied 89 NY2d 941,
rearg denied 89 NY2d 1091). Contrary to defendant’s further
contention, the sentence is not unduly harsh or severe.

     In his pro se supplemental brief, defendant contends that he was
denied effective assistance of counsel because his attorney also
represented defendant’s two accomplices and thus had an inherent
conflict of interest. We reject that contention. The successive or
joint representation of multiple defendants is “not per se violative
of one’s constitutional right to the effective assistance of counsel”
(People v Macerola, 47 NY2d 257, 262; see People v Gonzalez, 30 NY2d
28, 34, cert denied 409 US 859). While we agree with defendant that
both defense counsel and the prosecutor had a duty to recognize a
potential conflict of interest, defendant was required to show “that
the conduct of his defense was in fact affected by the operation of
the conflict of interest, or that the conflict operated on defense
counsel’s representation” (People v Weeks, 15 AD3d 845, 847, lv denied
4 NY3d 892 [internal quotation marks omitted]). Here, defendant
failed to make such a showing in his pro se supplemental brief, and we
therefore conclude that he has not met his burden of demonstrating
that he was denied the right to effective assistance of counsel under
the Federal or State Constitutions (see People v Harris, 99 NY2d 202,
210; Weeks, 15 AD3d at 847-848; cf. People v Ortiz, 76 NY2d 652, 657-
658). Finally, we note that this case involved successive
representations of codefendants, not multiple simultaneous
representations of codefendants, and we thus reject defendant’s
further contention in his pro se supplemental brief that the court was
required to conduct a Gomberg inquiry (see People v Jordan, 83 NY2d
785, 787-788; People v Gomberg, 38 NY2d 307, 313-314).




Entered:   July 6, 2012                        Frances E. Cafarell
                                               Clerk of the Court
