People v. Holland

Oct 4, 1994
Versions:208 A.D.2d 352
616 N.Y.S.2d 965
1994 N.Y. App. Div. LEXIS 9261

—Judgment, Supreme Court, New York County (Budd Goodman, J.), rendered January 18, 1991, after a jury trial, convicting defendant of robbery in the first degree, and sentencing him, as a second felony offender, to a term of 9 to 18 years, unanimously affirmed.

*353Defendant’s claim that error occurred when prospective jurors were questioned in his absence in the November 1990 proceedings does not warrant reversal (People v Sprowal, 84 NY2d 113).

Since complainant had independently and spontaneously recognized defendant approximately 10 to 15 minutes before as the robber, the showup was merely confirmatory (People v Martindale, 202 AD2d 158, lv denied 83 NY2d 912). Even if the second identification should have been suppressed, any error was harmless because of the earlier spontaneous identification and in view of its proximity in time and location to the point of arrest (see, People v Duuvon, 77 NY2d 541, 544-545).

Defendant’s absence from his Wade hearing was the result of a knowing waiver of his right to be there, after consultation with his counsel, which was confirmed by the court. Neither defendant nor his counsel limited the waiver to the testimony of any particular witness, nor did either of them object to his absence during the testimony of any witness.

We have considered defendant’s remaining contention and find it to be unpreserved as a matter of law and we decline to review in the interest of justice. Concur—Murphy, P. J., Ellerin, Ross, Nardelli and Williams, JJ.