SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

579 

KA 09-01169 

PRESENT: SMITH, J.P., FAHEY, PERADOTTO, AND LINDLEY, JJ. 

 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

DEVON CAPERS, DEFENDANT-APPELLANT. 

 

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF

COUNSEL), FOR DEFENDANT-APPELLANT. 

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (GEOFFREY KAEUPER OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Monroe County Court (John R.

Schwartz, A.J.), rendered June 17, 2008. The judgment convicted

defendant, upon a jury verdict, of robbery in the first degree,

burglary in the first degree (two counts), criminal sexual act in the

first degree (two counts), unlawful imprisonment in the first degree

and petit larceny. 

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed. 

Memorandum: Defendant appeals from a judgment convicting him

upon a jury verdict of, inter alia, two counts each of burglary in the

first degree (Penal Law § 140.30 [3]) and criminal sexual act in the

first degree (§ 130.50 [1]). As the People correctly concede, County

Court erred in permitting a police investigator to testify that

defendant refused to answer certain questions and that the interview

was thereafter terminated. That testimony implied that defendant had

stopped answering the investigator’s questions and had invoked his

right to remain silent. “Neither a defendant’s silence [nor his or

her] invocation of the right against self-incrimination during police

interrogation can be used against him [or her] on the People’s direct

case” (People v Whitley, 78 AD3d 1084, 1085). We nevertheless

conclude, “in light of the evidence presented, . . . that any such

error[ is] ‘harmless beyond a reasonable doubt’ inasmuch as there is

‘no reasonable possibility that the error[] might have contributed to

defendant’s conviction’ ” (People v Murphy, 79 AD3d 1451, 1453, lv

denied 16 NY3d 862, quoting People v Crimmins, 36 NY2d 230, 237; see

People v Kithcart, 85 AD3d 1558, 1559-1560, lv denied 17 NY3d 818).

“[D]efendant’s contentions that the testimony of a [police]

detective recounting the description of the perpetrator given by a

witness constituted improper bolstering and inadmissible hearsay . . .
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KA 09-01169 

are unpreserved for [our] review[ because] the defendant did not

object to the testimony on those grounds” (People v Walker, 70 AD3d

870, 871, lv denied 14 NY3d 894; see People v Everson, 100 NY2d 609,

610; People v Tevaha, 84 NY2d 879, 880-881). In any event, that

contention is without merit. The People were entitled “to provide

background information [concerning] how and why the police pursued and

confronted defendant” (People v Tosca, 98 NY2d 660, 661). 

Contrary to defendant’s further contention, the court properly

concluded that the showup identification procedure was not unduly

suggestive. Showup identification procedures are permitted where, as

here, they are “reasonable under the circumstances--that is, when

conducted in close geographic and temporal proximity to the crime--and

the procedure used was not unduly suggestive” (People v Brisco, 99

NY2d 596, 597). “Here, the showup identification procedure took place

at the scene of the crime, within 90 minutes of the commission of the

crime and in the course of a continuous, ongoing investigation”

(People v Woodard, 83 AD3d 1440, 1441, lv denied 17 NY3d 803; see

People v Harris, 57 AD3d 1427, 1428, lv denied 12 NY3d 817). 

We have considered defendant’s remaining contentions and conclude

that they are without merit.

Entered: April 20, 2012 Frances E. Cafarell

Clerk of the Court