

People v Vazquez (2019 NY Slip Op 07139)





People v Vazquez


2019 NY Slip Op 07139


Decided on October 3, 2019


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on October 3, 2019

Acosta, P.J., Renwick, Manzanet-Daniels, Singh, JJ.


10002 3448/14

[*1] The People of the State of New York, Respondent,
vBenjamin Vazquez, Defendant-Appellant.


Robert S. Dean, Center for Appellate Litigation, New York (Megan D. Byrne of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Peter Rienzi of counsel), for respondent.

Judgment, Supreme Court, New York County (Ellen N. Biben, J.), rendered November 7, 2016, convicting defendant, upon his plea of guilty, of attempted robbery in the second degree, and sentencing him, as a second violent felony offender, to a term of six years, unanimously affirmed.
In challenging the court's suppression rulings, the only relief defendant requests is dismissal of the indictment, and he expressly requests this Court to affirm his conviction if it does not grant a dismissal. However, even if we were to grant the suppression motion in its entirety, the proper remedy would be vacatur of the plea and a remand for further proceedings, including an independent source hearing regarding the victim's ability to make an in-court identification (see People v Burts , 78 NY2d 20, 23-24 [1991]). Since we do not find that dismissal of the indictment would be appropriate, we affirm on this basis.
In any event, we also find that the hearing court properly denied defendant's suppression motion. The stop of defendant, based on a detailed description, was at least supported by reasonable suspicion, and the ensuing showup in close spatial and temporal proximity to the crime was not unduly suggestive.
We perceive no basis for reducing the sentence.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: OCTOBER 3, 2019
CLERK


