People v. Stoneham

1576 Appeal from a judgment of the Supreme Court, Niagara County (Richard C. Kloch, Sr., A.J.), rendered July 18, 2005. The judgment convicted defendant, upon a jury verdict, of robbery in the first degree and criminal possession of a weapon in the third degree. It is hereby ordered that the judgment so appealed from is unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him following a jury trial of robbery in the first degree (Penal Law § 160.15 [3]) and criminal possession of a weapon in the third degree (§ 265.02 [1]). Contrary to the contention of defendant, County Court (Peter L. Broderick, Sr., J.) properly determined that the People established defendant’s competency to stand trial by a preponderance of the evidence (see People v Aponte, 34 AD3d 298 [2006], lv denied 8 NY3d 843 [2007]; People v Garrasi, 302 AD2d 981, 982 [2003], lv denied 100 NY2d 538 [2003]; see generally People v Mendez, 1 NY3d 15, 19-20 [2003]). Although conflicting testimony was presented at the competency hearing, the court’s findings are entitled to great deference (see Garrasi, 302 AD2d at 982; People v Brow, 255 AD2d 904 [1998]), and the opinions of two court-appointed psychiatric experts and the court’s own opportunity to observe defendant during the judicial proceedings support the conclusion that defendant had a “ ‘sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding . . . and ... a rational as well as factual understanding of the proceedings against him’ ” (Dusky v United States, 362 US 402, 402 [1960]; see Mendez, 1 NY3d at 19). We reject defendant’s further contention that the showup identification procedure was unduly suggestive. The showup was conducted in geographical and temporal proximity to the crime (see generally People v Ortiz, 90 NY2d 533, 537 [1997]), and it was not rendered unduly suggestive by the fact that defendant was handcuffed and seated in a patrol car when he was identified (see People v Armstrong, 11 AD3d 721, 722 [2004], lv denied 4 NY3d 760 [2005]). Finally, there is no support in the record for the contention of defendant that Supreme Court (Richard C. Kloch, Sr., A.J.) acted vindictively in sentencing him (see People v Lewis, 292 AD2d 814, 815 [2002], lv denied 98 NY2d 677 [2002]; see generally. People v Pena, 50 NY2d 400, 411-412 [1980], rearg denied 51 NY2d 770 [1980], cert denied 449 US 1087 [1981]), and the sentence is not unduly harsh or severe. Present—Scudder, P.J., Hurlbutt, Centra, Green and Gorski, JJ.