

People v Sims (2017 NY Slip Op 00197)





People v Sims


2017 NY Slip Op 00197


Decided on January 11, 2017


Appellate Division, Second 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 January 11, 2017
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

RUTH C. BALKIN, J.P.
LEONARD B. AUSTIN
SANDRA L. SGROI
HECTOR D. LASALLE, JJ.


2014-05056
 (Ind. No. 3003/10)

[*1]The People of the State of New York, respondent,
vShiroide Sims, appellant.


Laurette Mulry, Riverhead, NY (Alfred J. Cicale of counsel), for appellant.
Thomas J. Spota, District Attorney, Riverhead, NY (Glenn Green of counsel), for respondent.

DECISION & ORDER
Appeal by the defendant from a judgment of the County County, Suffolk County (Braslow, J.), rendered April 16, 2014, convicting him of manslaughter in the first degree, upon his plea of guilty, and imposing sentence which included a fine in the sum of $5,000. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress identification testimony.
ORDERED that the judgment is modified, on the law and as a matter of discretion in the interest of justice, by vacating the provision of the sentence imposing a fine in the sum of $5,000; as so modified, the judgment is affirmed.
The defendant was arrested after three eyewitnesses identified him in a photo array as the person who shot and killed the victim. The defendant was charged with, among other crimes, murder in the second degree. The defendant moved, inter alia, to suppress identification testimony on the ground that the identification procedure—a photo array—was unduly suggestive. After a hearing, the County Court denied that branch of the defendant's omnibus motion. The defendant subsequently pleaded guilty to manslaughter in the first degree, and sentence was imposed, which included a fine in the sum of $5,000.
At a suppression hearing on a defendant's motion challenging a pretrial identification procedure as unduly suggestive, the People "have the initial burden of going forward to establish the reasonableness of the police conduct and the lack of any undue suggestiveness" (People v Chipp, 75 NY2d 327, 335; see People v Busano, 141 AD3d 538, 539). This is "a  minimal' burden of  production'" (People v Busano, 141 AD3d at 539, quoting People v Ortiz, 90 NY2d 533, 538). " If the People meet their burden of production, the burden shifts to the defendant to persuade the hearing court that the procedure was improper'" (People v Busano, 141 AD3d at 539, quoting People v Holley, 26 NY3d 514, 521).
Here, the People met their initial burden through the testimony of the police officer who conducted the photo array with the three eyewitnesses on the same day, at three separate locations, and through admission into evidence of the photo array, which revealed that the individuals depicted were sufficiently similar to the defendant in appearance such that there was little [*2]likelihood that he would be singled out for identification based on particular characteristics (see People v Staton, 138 AD3d 1149, 1150; People v Burroughs, 98 AD3d 583, 584; People v Hewitt, 82 AD3d 1119, 1120). Since the People met their initial burden through this evidence, contrary to the defendant's contention, it was not necessary for them to present testimony from one of the identifying witnesses and the police officer who compiled the photo array, and the defendant never sought to call these witnesses at the hearing (cf. People v Cherry, 26 AD3d 342; People v Sokolyansky, 147 AD2d 722).
The defendant's contention that the fine imposed as part of his sentence should be vacated because the County Court did not indicate that the plea of guilty was negotiated with terms that included a fine is unpreserved for appellate review (see CPL 470.05[2]; People v Gregory, 140 AD3d 1088; People v Nilsen, 129 AD3d 994). Nevertheless, we reach the issue in the exercise of our interest of justice jurisdiction.
The County Court erred in imposing a fine, since there is no indication in the plea minutes that the defendant's plea of guilty was negotiated with terms that included a fine (see People v Gregory, 140 AD3d 1088; People v Roberts, 139 AD3d 1092). The sole relief requested by the defendant for this error is modification of his sentence to vacate the provision imposing a fine, and the People consent to the sentence being so modified. Under the circumstances, we deem it appropriate to vacate the provision of the defendant's sentence imposing a fine in the sum of $5,000 (see People v Gregory, 140 AD3d 1088; People v Roberts, 139 AD3d 1092).
The defendant's remaining contentions are without merit.
BALKIN, J.P., AUSTIN, SGROI and LASALLE, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


