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

579
KA 09-01169
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, AND LINDLEY, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DEVON CAPERS, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (GEOFFREY KAEUPER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (John R.
Schwartz, A.J.), rendered June 17, 2008. The judgment convicted
defendant, upon a jury verdict, of robbery in the first degree,
burglary in the first degree (two counts), criminal sexual act in the
first degree (two counts), unlawful imprisonment in the first degree
and petit larceny.

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

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of, inter alia, two counts each of burglary in the
first degree (Penal Law § 140.30 [3]) and criminal sexual act in the
first degree (§ 130.50 [1]). As the People correctly concede, County
Court erred in permitting a police investigator to testify that
defendant refused to answer certain questions and that the interview
was thereafter terminated. That testimony implied that defendant had
stopped answering the investigator’s questions and had invoked his
right to remain silent. “Neither a defendant’s silence [nor his or
her] invocation of the right against self-incrimination during police
interrogation can be used against him [or her] on the People’s direct
case” (People v Whitley, 78 AD3d 1084, 1085). We nevertheless
conclude, “in light of the evidence presented, . . . that any such
error[ is] ‘harmless beyond a reasonable doubt’ inasmuch as there is
‘no reasonable possibility that the error[] might have contributed to
defendant’s conviction’ ” (People v Murphy, 79 AD3d 1451, 1453, lv
denied 16 NY3d 862, quoting People v Crimmins, 36 NY2d 230, 237; see
People v Kithcart, 85 AD3d 1558, 1559-1560, lv denied 17 NY3d 818).

     “[D]efendant’s contentions that the testimony of a [police]
detective recounting the description of the perpetrator given by a
witness constituted improper bolstering and inadmissible hearsay . . .
                                 -2-                           579
                                                         KA 09-01169

are unpreserved for [our] review[ because] the defendant did not
object to the testimony on those grounds” (People v Walker, 70 AD3d
870, 871, lv denied 14 NY3d 894; see People v Everson, 100 NY2d 609,
610; People v Tevaha, 84 NY2d 879, 880-881). In any event, that
contention is without merit. The People were entitled “to provide
background information [concerning] how and why the police pursued and
confronted defendant” (People v Tosca, 98 NY2d 660, 661).

     Contrary to defendant’s further contention, the court properly
concluded that the showup identification procedure was not unduly
suggestive. Showup identification procedures are permitted where, as
here, 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” (People v Brisco, 99
NY2d 596, 597). “Here, the showup identification procedure took place
at the scene of the crime, within 90 minutes of the commission of the
crime and in the course of a continuous, ongoing investigation”
(People v Woodard, 83 AD3d 1440, 1441, lv denied 17 NY3d 803; see
People v Harris, 57 AD3d 1427, 1428, lv denied 12 NY3d 817).

     We have considered defendant’s remaining contentions and conclude
that they are without merit.




Entered:   April 20, 2012                       Frances E. Cafarell
                                                Clerk of the Court
