People v. Jerry, 126 A.D.3d 1001 (N.Y. App. Div. 2015). · Go Syfert
People v. Jerry, 126 A.D.3d 1001 (N.Y. App. Div. 2015). Cases Citing This Book View Copy Cite
28 citation events (28 in the last 25 years) across 2 distinct courts.
Strongest positive: Matter of Heydi M. (nyappdiv, 2017-10-11)
Treatment trajectory · 2015 → 2026 · click a year to view as-of
2015 2020 2026
Top citers, strongest first. 10 distinct citers. How cited ↗
discussed Cited as authority (rule) Matter of Heydi M.
N.Y. App. Div. · 2017 · confidence medium
Here, the presentment agency met its initial burden of establishing the reasonableness of the police conduct and the lack of undue suggestiveness (see People v Jerry, 126 AD3d 1001, 1002 [2015]; People v Charles, 110 AD3d 1094, 1095-1096 [2013]; People v Calero, 105 AD3d 864, 864-865 [2013]), and the appellant failed to satisfy the ultimate burden of demonstrating that the showup procedure was unduly suggestive (see People v Ortiz, 90 NY2d at 537 ; People v Jerry, 126 AD3d at 1002 ; People v Charles, 110 AD3d at 1096 ; People v Guitierres, 82 AD3d at 1117 ).
discussed Cited as authority (rule) People v. Flores
N.Y. App. Div. · 2017 · confidence medium
Contrary to Ramirez’s contention, the showup was not rendered unduly suggestive merely because he was handcuffed and in the presence of uniformed police officers and police cars (see People v Duuvon, 77 NY2d 541, 544 [1991]; People v Mack, 135 AD3d at 963 ; People v Jerry, 126 AD3d 1001, 1002 [2015]).
discussed Cited as authority (rule) People v. Slattery
N.Y. App. Div. · 2017 · confidence medium
Furthermore, the fact that the defendant was handcuffed and in the presence of police officers does not render the showup unduly suggestive (see People v Mack, 135 AD3d 962, 963 [2016]; People v Jerry, 126 AD3d 1001, 1002 [2015]; People v Charles, 110 AD3d 1094, 1096 [2013]; People v Gonzalez, 57 AD3d 560, 561 [2008]; People v Berry, 50 AD3d 1047 [2008]; People v Jay, 41 AD3d 615 [2007]).
discussed Cited as authority (rule) People v. Slattery
N.Y. App. Div. · 2017 · confidence medium
Furthermore, the fact that the defendant was handcuffed and in the presence of police officers does not render the showup unduly suggestive (see People v Mack, 135 AD3d 962, 963 [2016]; People v Jerry, 126 AD3d 1001, 1002 [2015]; People v Charles, 110 AD3d 1094, 1096 [2013]; People v Gonzalez, 57 AD3d 560, 561 [2008]; People v Berry, 50 AD3d 1047 [2008]; People v Jay, 41 AD3d 615 [2007]).
discussed Cited as authority (rule) People v. Robinson
N.Y. App. Div. · 2016 · confidence medium
Trial testimony may not be considered in evaluating a suppression ruling on appeal (see People v Abrew, 95 NY2d 806, 808 [2000]; People v Jerry, 126 AD3d 1001, 1002 [2015]; People v Hudson, 71 AD3d 1046, 1047 [2010]).
discussed Cited as authority (rule) Matter of Shan M. (2×) also: Cited "see"
N.Y. App. Div. · 2016 · confidence medium
Here, the presentment agency met its initial burden of establishing the reasonableness of the police conduct and the lack of undue suggestiveness (see People v Jerry, 126 AD3d 1001, 1002 [2015]; People v Charles, 110 AD3d at 1095-1096 ; People v Calero, 105 AD3d 864, 864-865 [2013]).
discussed Cited as authority (rule) People v. Bartlett
N.Y. App. Div. · 2016 · confidence medium
Contrary to the defendant’s contentions, the showup was not rendered unduly suggestive because he was handcuffed and in the presence of uniformed police officers (see People v Jay, 41 AD3d 615 [2007]; People v Samuels, 39 AD3d 569, 570 [2007]; People v Rice, 39 AD3d 567, 568 [2007]; People v Bitz, 209 AD2d 709, 709-710 [1994]), or because the police shined the lights of a police vehicle on him (see People v Gilford, 16 NY3d 864, 866-868 [2011]; People v Jerry, 126 AD3d 1001, 1002 [2015]; People v Mais, 71 AD3d 1163, 1165 [2010]; People v Siler, 45 AD3d 1403 [2007]), or because the witness kn…
cited Cited as authority (rule) People v. Hernandez
N.Y. App. Div. · 2016 · confidence medium
Finally, we note that on appeal we may not consider trial testimony in evaluating a suppression ruling (see People v Jerry, 126 AD3d 1001, 1002 [2015]).
discussed Cited as authority (rule) People v. Mack (2×)
N.Y. App. Div. · 2016 · confidence medium
They also met their burden of establishing the lack of any undue suggestiveness through the testimony of the detective who transported the complainant to the showup and who provided a detailed account of the physical circumstances of the procedure (see People v Jerry, 126 AD3d 1001, 1002 [2015]; People v Ervin, 118 AD3d 910, 911 [2014]).
discussed Cited as authority (rule) People v. Nadal
N.Y. App. Div. · 2015 · confidence medium
Ordered that the judgment is affirmed. * To the extent that defendant attempts to rely upon the allegedly inconsistent trial testimony of the detective, we need only note that “[tjrial testimony may not be considered in evaluating a suppression ruling on appeal” (People v Jerry, 126 AD3d 1001, 1002 [2015], lv denied 25 NY3d 1165 [2015]; see People v Abrew, 95 NY2d 806, 808 [2000]).
Retrieving the full opinion text from the archive…
The People of the State of New York, Respondent,
v.
Theodore Jerry, Appellant
2013-04525.
Appellate Division of the Supreme Court of the State of New York.
Mar 25, 2015.
126 A.D.3d 1001
2015 N.Y. App. Div. LEXIS 2513
Mastro, Austin, Cohen, Barros.
Cited by 23 opinions  |  Published

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Robbins, J.), rendered April 17, 2013, convicting him of robbery in the first degree (eight counts), burglary in the first degree (five counts), robbery in the second degree (two counts), criminal possession of a weapon in the second degree, burglary in the second degree, criminal possession of a weapon in the third degree, and assault in the second degree (two counts), upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress identification evidence.

Ordered that the judgment is affirmed.

The defendant improperly relies, in part, upon trial testimony to challenge the hearing court’s determination denying sup[*1002] pression of showup identification evidence. Trial testimony may not be considered in evaluating a suppression ruling on appeal (see People v Abrew, 95 NY2d 806, 808 [2000]; People v Hudson, 71 AD3d 1046, 1047 [2010]).

The defendant’s contention that suppression was improperly denied is without merit. The showup took place within 40 minutes of the commission of the crime in a yard adjacent to the crime scene. The People met their initial burden of establishing the reasonableness of the police conduct and the lack of any undue suggestiveness (see People v Ortiz, 90 NY2d 533, 537 [1997]) through the testimony of the police officers who transported the complainants to the showup and provided a detailed account of the physical circumstances of the procedure (see People v Ervin, 118 AD3d 910 [2014]; People v Charles, 110 AD3d 1094 [2013]; People v Berry, 50 AD3d 1047 [2008]). The defendant then failed to satisfy the ultimate burden of proving that the showup procedure was unduly suggestive and subject to suppression (see People v Ortiz, 90 NY2d at 537). Contrary to the defendant’s contention, the showup was not rendered unduly suggestive because he was handcuffed and in the presence of uniformed police officers (see People v Ward, 116 AD3d 989 [2014]; People v Charles, 110 AD3d at 1096; People v Samuels, 39 AD3d 569 [2007]; People v Rice, 39 AD3d 567, 568 [2007]), or because the police officers used a spotlight (see People v Siler, 45 AD3d 1403 [2007]). Since the defendant failed to meet his burden of establishing that the showup was unduly suggestive, it was not necessary for the People to establish that the complainants had a source for their in-court identification of the defendant independent of the showup (see People v Johnson, 104 AD3d 705 [2013]; People v Traylor, 69 AD3d 659 [2010]; People v Coad, 60 AD3d 963 [2009]).

The defendant’s contention that certain counts in the indictment were multiplicitous is unpreserved for appellate review (see People v Allen, 24 NY3d 441, 448-450 [2014]; People v Cruz, 96 NY2d 857 [2001]; People v Salton, 120 AD3d 838 [2014]), and we decline to review it in the exercise of our interest of justice jurisdiction (see People v Nash, 77 AD3d 687 [2010]; People v Martin, 68 AD3d 1015 [2009]; People v Morey, 224 AD2d 730 [1996]).

Mastro, J.P., Austin, Cohen and Barros, JJ., concur.