Opinion
2014-01-3
The PEOPLE of the State of New York, Respondent, v. Ronald S. SAMUELS, Jr., Defendant–Appellant.
Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti, J.), rendered January 13, 2009. The judgment convicted defendant, upon a jury verdict, of assault in the second degree. Timothy P. Donaher, Public Defender, Rochester (Drew R. Dubrin of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Amanda L. Dreher of Counsel), for Respondent.
Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti, J.), rendered January 13, 2009. The judgment convicted defendant, upon a jury verdict, of assault in the second degree.
Timothy P. Donaher, Public Defender, Rochester (Drew R. Dubrin of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Amanda L. Dreher of Counsel), for Respondent.
MEMORANDUM:
On appeal from a judgment convicting him upon a jury verdict of assault in the second degree (Penal Law § 120.05[2] ), defendant contends that Supreme Court erred in denying his request to charge assault in the third degree as a lesser included offense ( see generally People v. Glover, 57 N.Y.2d 61, 63, 453 N.Y.S.2d 660, 439 N.E.2d 376). Viewing the evidence in the light most favorable to defendant, as we must ( see People v. Burnett, 100 A.D.3d 1561, 1562, 954 N.Y.S.2d 391), we reject that contention ( see generally People v. Freeman, 46 A.D.3d 1375, 1376, 848 N.Y.S.2d 800, lv. denied10 N.Y.3d 840, 859 N.Y.S.2d 399, 889 N.E.2d 86; People v. Saunders, 292 A.D.2d 780, 780, 738 N.Y.S.2d 785, lv. denied98 N.Y.2d 681, 746 N.Y.S.2d 470, 774 N.E.2d 235).
Contrary to defendant's further contention, “the police had reasonable suspicion to stop and detain him for a showup identification procedure based on the totality of the circumstances, including ‘a radio transmission providing a general description of the perpetrator[ ] of [the] crime[,] ... the ... proximity of the defendant to the site of the crime, the brief period of time between the crime and the discovery of the defendant near the location of the crime, and the [officer's] observation of the defendant, who matched the radio-transmitted description’ ” (People v. Casillas, 289 A.D.2d 1063, 1064, 736 N.Y.S.2d 207, lv. denied97 N.Y.2d 752, 742 N.Y.S.2d 612, 769 N.E.2d 358; see People v. Bolden, 109 A.D.3d 1170, 1172, 973 N.Y.S.2d 500; People v. Knight, 94 A.D.3d 1527, 1529, 943 N.Y.S.2d 355, lv. denied19 N.Y.3d 998, 951 N.Y.S.2d 474, 975 N.E.2d 920). Also contrary to defendant's contention, he was not under arrest at the time that he was handcuffed and transported in a police vehicle to the nearby crime scene for a showup identification procedure ( see People v. Galloway, 40 A.D.3d 240, 240–241, 835 N.Y.S.2d 135, lv. denied9 N.Y.3d 844, 840 N.Y.S.2d 770, 872 N.E.2d 883; see also People v. McCoy, 46 A.D.3d 1348, 1349, 848 N.Y.S.2d 505, lv. denied10 N.Y.3d 813, 857 N.Y.S.2d 47, 886 N.E.2d 812). Finally, we conclude that “[t]he police had probable cause to arrest defendant after the victim [and a security officer] identified him during the showup identification procedure” (People v. Dumbleton, 67 A.D.3d 1451, 1452, 888 N.Y.S.2d 817, lv. denied14 N.Y.3d 770, 898 N.Y.S.2d 102, 925 N.E.2d 107).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed. SMITH, J.P., FAHEY, LINDLEY, SCONIERS, and WHALEN, JJ., concur.