Opinion
May 31, 1996
Appeal from the Supreme Court, Erie County, Feeman, Jr., J.
Present — Denman, P.J., Pine, Fallon, Balio and Boehm, JJ.
Judgment unanimously affirmed. Memorandum: A show up identification is permissible if it is not unduly suggestive and "`if exigent circumstances require immediate identification [citations omitted], or if the suspects are captured at or near the crime scene and can be viewed by the witness immediately'" ( People v. Johnson, 81 N.Y.2d 828, 831). Defendant contends that the show up procedure at the hospital was unduly suggestive. We disagree. The showup identification at the hospital was conducted within 15 to 20 minutes of commission of the crime ( see, People v. Brnja, 50 N.Y.2d 366). Although the identification of defendant while he was handcuffed and in the presence of police officers "presses judicial tolerance to its limits", the record supports the finding that it was not unduly suggestive ( People v. Duuvon, 77 N.Y.2d 541, 545; see, People v. Hendrick, 192 A.D.2d 1100, lv denied 82 N.Y.2d 755; People v. Hunt, 187 A.D.2d 981, lv denied 81 N.Y.2d 887; People v. Jones, 149 A.D.2d 970, lv denied 74 N.Y.2d 742). Finally, the sentence imposed is not unduly harsh or severe.