SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1164 

CAF 14-01921 

PRESENT: SCUDDER, P.J., CENTRA, CARNI, WHALEN, AND DEJOSEPH, JJ.

 

IN THE MATTER OF CHARLES P., 

RESPONDENT-APPELLANT. 

---------------------------- MEMORANDUM AND ORDER

MONROE COUNTY ATTORNEY, 

PETITIONER-RESPONDENT. 

CHARLES PLOVANICH, ATTORNEY FOR THE CHILD, ROCHESTER, FOR

RESPONDENT-APPELLANT. 

MERIDETH H. SMITH, COUNTY ATTORNEY, ROCHESTER (PAUL D. IRVING OF

COUNSEL), FOR PETITIONER-RESPONDENT.

 

Appeal from an order of the Family Court, Monroe County (Joan S.

Kohout, J.), entered September 22, 2014 in a proceeding pursuant to

Family Court Act article 3. The order, inter alia, adjudicated

respondent to be a juvenile delinquent. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs. 

Memorandum: Respondent appeals from an order adjudicating him to

be a juvenile delinquent based on the finding that he committed acts

that, if committed by an adult, would constitute two counts of the

crime of robbery in the second degree (Penal Law § 160.10 [1], [3]). 

We reject respondent’s contention that the showup identification

procedure was unduly suggestive. The showup was conducted in temporal

and geographic proximity to the crime (see Matter of Jose T., 127 AD3d

875, 877; People v Williams, 118 AD3d 1478, 1479, lv denied 24 NY3d

1090; People v Kirkland, 49 AD3d 1260, 1260-1261, lv denied 10 NY3d

961, cert denied 555 US 1181). The fact that respondent was in

handcuffs and accompanied by an officer at the time of the showup did

not, by itself, render the procedure unduly suggestive (see Matter of

Madeline D., 125 AD3d 965, 966; People v Cooper, 152 AD2d 939, 939, lv

denied 74 NY2d 846; see also Matter of Terron B., 77 AD3d 499, 500). 

In addition, nothing said by the officers was unduly suggestive or

otherwise improper (see Matter of Nathaniel W., 121 AD3d 407, 407;

People v Jeffries, 125 AD2d 412, 412, lv denied 69 NY2d 882).

Although respondent preserved for our review his contention that

the evidence is legally insufficient to establish that he committed

the robbery as a principal, he failed to preserve for our review his

further contention that the evidence is legally insufficient to

establish that he shared the intent of the actual perpetrators and is

culpable as an accomplice (see Matter of Jonathan S., 55 AD3d 1324,
-2- 1164 

CAF 14-01921 

1324-1325). In any event, we conclude that the evidence is legally

sufficient to establish that he committed acts that, if committed by

an adult, would constitute the crime of robbery in the second degree

under Penal Law § 160.10 (1) and (3). The evidence, viewed in the

light most favorable to the presentment agency, established that

respondent was one of three perpetrators who forcibly stole personal

property from the victim and then entered the victim’s vehicle and

fled the scene. Respondent “knowingly participated” in the acts and

is culpable as an accomplice (People v Allah, 71 NY2d 830, 832; see §

20.00; Matter of Kadeem W., 5 NY3d 864, 867; Matter of Jamal G., 127

AD3d 1081, 1082). We further conclude that the court’s findings are

not against the weight of the evidence (see Matter of Shannon F., 121

AD3d 1595, 1596, lv denied 24 NY3d 913; Matter of Isaac J., 109 AD3d

1176, 1176; Matter of Shawn D.R.-S., 94 AD3d 1544, 1545).

Entered: November 13, 2015 Frances E. Cafarell

Clerk of the Court