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

423
KA 08-01012
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, LINDLEY, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

VICTOR E. SANTIAGO, DEFENDANT-APPELLANT.


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

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


     Appeal from a judgment of the Monroe County Court (John R.
Schwartz, A.J.), rendered February 7, 2008. The judgment convicted
defendant, upon his plea of guilty, of burglary in the second degree
and possession of burglar’s tools.

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

     Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of burglary in the second degree (Penal Law § 140.25
[2]) and possession of burglar’s tools (§ 140.35), defendant contends
that County Court erred in refusing to suppress the victim’s showup
identification of him. Defendant contended following the suppression
hearing that the showup procedure was “inherently suggestive” because
the victim was “a young man who was shown no one else moments after an
event.” Thus, defendant failed to preserve for our review his present
contentions that the showup procedure was unreasonable under the
circumstances, that it was unduly suggestive because the 13-year-old
identifying victim observed defendant exiting a police car in
handcuffs, and defendant was in the presence of a police officer
during the showup procedure (see CPL 470.05 [2]; People v Morgan, 302
AD2d 983, 984, lv denied 99 NY2d 631). In any event, we conclude that
defendant’s present contentions lack merit. The showup procedure was
reasonable under the circumstances because it was conducted in
“geographic and temporal proximity to the crime” (People v Brisco, 99
NY2d 596, 597; see People v Kirkland, 49 AD3d 1260, 1260-1261, lv
denied 10 NY3d 958, 961, cert denied ___ US ___, 129 S Ct 1331; People
v Davis, 48 AD3d 1120, 1122, lv denied 10 NY3d 957). Further, the
showup procedure was not rendered unduly suggestive by the victim’s
observation of defendant exiting a police car in handcuffs or by the
fact that defendant was in the presence of a police officer during the
procedure (see Davis, 48 AD3d at 1122; see also People v Grant, 77
                                 -2-                          423
                                                        KA 08-01012

AD3d 558). Finally, it cannot be said that the identifying victim’s
young age rendered the showup procedure unduly suggestive (see
generally People v Smith, 236 AD2d 639, 640, lv denied 90 NY2d 863).




Entered:   April 1, 2011                       Patricia L. Morgan
                                               Clerk of the Court
