Summary
affirming conviction despite showup in emergency room where defendant was lying wounded on stretcher
Summary of this case from Santiago v. ArtuzOpinion
September 30, 1991
Appeal from the County Court, Nassau County (Wexner, J.).
Ordered that the judgment is affirmed.
We reject the defendant's contention that the trial court erred in denying his application to sever the counts of the indictment which charged him with separate criminal offenses. The separate offenses were properly joinable in a single indictment pursuant to CPL 200.20 (2) (b) as the nature of the proof for one of the offenses was material and admissible as evidence-in-chief upon the trial of the other. Since the offenses were properly joined in one indictment from the outset, the court lacked statutory discretion to sever (see, CPL 200.20; People v Bongarzone, 69 N.Y.2d 892, 895; People v. Lane, 56 N.Y.2d 1, 7; People v. Chapman, 145 A.D.2d 642).
We also reject the defendant's contention that the showup procedure was unduly suggestive because he was identified outside a hospital emergency room while lying wounded on a stretcher. Showup procedures which are close in time and location to the scene and less than ideal may be considered tolerable in the interest of prompt identification (see, People v. Love, 57 N.Y.2d 1023; People v. Brnja, 50 N.Y.2d 366; People v. Cardwell, 158 A.D.2d 533; People v. Redd, 137 A.D.2d 770). This showup occurred close in time to the crime, while the witness's memory was fresh, and under the other circumstances, was not unduly suggestive (see, People v. Perez, 135 A.D.2d 665).
The defendant's claim that his sentence was excessive is without merit (see, People v. Suitte, 90 A.D.2d 80).
We have considered the defendant's remaining contentions, including those raised in his supplemental pro se brief, and find them to be without merit. Mangano, P.J., Kunzeman, Miller and Copertino, JJ., concur.