ORDERED that the judgment is modified, on the law, by vacating the convictions of robbery in the first degree and criminal possession of stolen property in the fifth degree, and vacating the sentences imposed thereon; as so modified, the judgment is affirmed, that branch of the defendant's omnibus motion which was to suppress physical evidence is granted, and a new trial is ordered on those counts of the indictment.
The defendant was charged with robbery in the first degree, criminal possession of stolen property in the fifth degree, and criminal possession of a weapon in the fourth degree after he allegedly confronted the complainant on a street corner, with a weapon, and took the complainant's purse. The defendant allegedly fled. Police officers responded to the scene and put through a radio call with a description of the suspect. Moments later, police officers spotted the defendant, who matched the description of the suspect, walking a few blocks away from the crime scene. Upon asking the defendant to stop, a foot pursuit ensued. Once the police officers reached the defendant, he began to backpedal with a box cutter in his left hand. One of the police officers was able to remove the weapon and after a brief struggle, the defendant was apprehended. The defendant was handcuffed and frisked for weapons, after which time a driver license belonging to the complainant was removed from his pocket. Shortly thereafter, the complainant was brought to where the defendant was located to conduct a showup identification procedure and the complainant identified the defendant as the person who robbed her.
Prior to trial, the defendant moved, inter alia, to suppress the driver license recovered from his pocket and the identification evidence. A suppression hearing was held at which the People [*2]presented testimony from Police Officers Richard Teemsma and Nicholas Mancuso. After the hearing, the Supreme Court, among other things, denied those branches of the defendant's omnibus motion.
The case proceeded to a jury trial. The defendant was convicted of robbery in the first degree, criminal possession of stolen property in the fifth degree, and criminal possession of a weapon in the fourth degree, and sentence was imposed. The defendant appeals.
"On a motion to suppress physical evidence, the People bear the burden of going forward to establish the legality of police conduct in the first instance" (People v Sidbury, 237 AD3d 975, 976 [internal quotation marks omitted]; see
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People v Bryant, 250 AD3d 1079, 1081; People v Joyette, 219 AD3d 628, 630). "However, it is the defendant who bears the ultimate burden of proving that the evidence should not be used against him [or her]" (People v Rhames, 196 AD3d 510, 512 [internal quotation marks omitted]; see People v Bryant, 250 AD3d at 1081). As relevant here, "[a] corollary of the statutory right to temporarily detain for questioning is the authority to frisk if the officer reasonably suspects that he [or she] is in danger of physical injury by virtue of the detainee being armed"
(People v De Bour, 40 NY2d 210, 223; see People v Baker, 205 AD3d 815, 816-817). However, a police officer must have knowledge of some fact or circumstance that supports a reasonable suspicion that the suspect is armed or poses a threat to safety in order to justify a frisk or "pat-down" of a suspect's outer clothing (see People v Batista, 88 NY2d 650, 654; People v De Bour, 40 NY2d at 223; People v Goldson, 136 AD3d 1053, 1054). "Among the factors relevant to determining whether a pat-down search is justified are the substance and reliability of the report that brought the officers to the scene, the nature of the crime that the police are investigating, the suspect's behavior and the shape, size, and location of any bulges in the suspect's clothing" (People v Graves, 142 AD3d 559, 560 [internal quotation marks omitted]; see People v Shuler, 98 AD3d 695, 696). "The officer may intrude upon the person or personal effects of the suspect only to the extent that is actually necessary to protect himself or herself from harm while he or she conducts the inquiry" (People v Lewis, 242 AD3d 1116, 1120 [alterations and internal quotation marks omitted]; see People v Torres, 74 NY2d 224, 226; People v Graham, 134 AD3d 1047, 1048).
Here, the Supreme Court properly determined that since the defendant fit the description heard over the radio and he was in close spatial and temporal proximity to the scene of the robbery, the police officers reasonably suspected that the defendant was the perpetrator of the robbery. Furthermore, the police officers were justified in performing a protective frisk since they had reasonable suspicion that the defendant was armed and dangerous since he had a box cutter in his hand, and the police officers had concerns for safety, entitling them to conduct a protective frisk (cf. People v Smith, 187 AD3d 944, 948). However, here, there was no justification for searching the defendant's pants pocket, reaching into it, and removing the driver license (see People v Lewis, 242 AD3d at 1121), as there was no evidence presented at the suppression hearing that, during his frisk of the defendant, Officer Mancuso felt anything in the defendant's pocket that seemed to be a weapon or that could have posed a further danger to the police officers at the scene. In the course of conducting a protective pat-down based upon reasonable suspicion, "[o]nce an officer has concluded that no weapon is present, the search is over and there is no authority for further intrusion" (People v Diaz,
81 NY2d 106, 109; see People v Lewis, 242 AD3d at 1121; People v Setzer, 199 AD2d 548, 549). Thus, there was no lawful basis for removing the driver license from the defendant's pocket (see People v Lewis, 242 AD3d at 1121; People v Smith, 187 AD3d at 948). Accordingly, the People failed to satisfy their burden of going forward to establish the legality of police conduct in the first instance, and thus, the driver license should have been suppressed. Furthermore, the error in admitting the driver license was not harmless beyond a reasonable doubt. Here, it is reasonably possible that the admission of this powerful, crucial corroborating evidence influenced the jury adversely to the defendant, and there is a reasonable possibility that the admission of the driver license contributed to the convictions of robbery in the first degree and criminal possession of stolen property in the fifth degree (see Chapman v California, 386 US 18, 23; People v Crimmins, 36 NY2d 230, 240-241; People v Lewis, 242 AD3d at 1123). [*3]Accordingly, even where it can be said that the circumstantial evidence connecting the defendant to the robbery was strong, here, where the proceeds of the robbery were found in the defendant's pocket, it greatly enhanced the quantum of proof against the defendant, removing any possible doubt that he was the perpetrator of the robbery (see People v Lewis, 242 AD3d at 1123). Accordingly, we vacate the convictions of robbery in the first degree and criminal possession of stolen property in the fifth degree and direct a new trial on those counts of the indictment. Contrary to the defendant's contentions, based on the totality of the circumstances, the showup identification procedure was not unduly suggestive. "[A] pretrial identification procedure that is unduly suggestive violates a defendant's due process rights and is not admissible to determine the guilt or innocence of an accused" (People v Marshall, 26 NY3d 495, 503 [internal quotation marks omitted]; see People v Chipp, 75 NY2d 327, 335). At a Wade hearing (see United States v Wade, 388 US 218), "[w]hile the People have the initial burden of going forward to establish the reasonableness of the police conduct and the lack of any undue suggestiveness in a pretrial identification procedure, it is the defendant who bears the ultimate burden of proving that the procedure was unduly suggestive" (People v Chipp,
75 NY2d at 335). "While showup procedures are generally disfavored, they are permissible, even in the absence of exigent circumstances, when they are spatially and temporally proximate to the commission of the crime and not unduly suggestive" (People v Gonzalez, 57 AD3d 560, 561 [internal quotation marks omitted]; see People v Forrest, 186 AD3d 1395, 1396; People v Berry, 50 AD3d 1047, 1048).
Here, the hearing testimony of the police officers demonstrated that the showup identification procedure occurred in close spatial and temporal proximity to the commission of the crimes (see People v Forrest, 186 AD3d at 1396; People v Hosannah, 178 AD3d 1074, 1075; People v Slattery, 147 AD3d 788, 790). In turn, the defendant failed to satisfy his ultimate burden of proving that the showup identification procedure was unduly suggestive and subject to suppression. The fact that the defendant was handcuffed, the mere presence of police, or the police shining a flashlight, headlights, or other lighting at the scene of the identification does not render the procedure unduly suggestive (see People v Castro, 149 AD3d 862, 864; People v Jerry, 126 AD3d 1001, 1002; People v Peterson, 110 AD3d 1103, 1104). Additionally, the showup identification procedure was not unduly suggestive because the complainant may have heard a radio transmission or knew that the police had a suspect in custody (see People v Hosannah, 178 AD3d at 1075; People v Charles, 110 AD3d 1094, 1096). Contrary to the defendant's contentions, the complainant's request that the defendant put on his hood and sunglasses during the showup does not render the identification procedure unduly suggestive (see People v Brisco, 99 NY2d 596, 597; People v Cruz, 31 AD3d 660, 661; cf. People v James, 128 AD3d
723, 725).
In light of our determination, the defendant's remaining contention need not be addressed. GENOVESI, J.P., CHRISTOPHER, WAN and GOLDBERG VELAZQUEZ, JJ., concur.
ENTER:
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