The People of the State of New York, Respondent, v Fred Jacksоn, Appellant.
Appellate Division of the Supreme Court of New York, First Department
792 NYS2d 450
The court propеrly denied defendant‘s motion to suppress physical evidence. There is no basis for disturbing the court‘s determination that defendant consented to the police entry into his home, which is supported by the record (see People v Prochilo, 41 NY2d 759, 761 [1977]). In any event, even if the police made an entry in violatiоn of Payton v New York (445 US 573 [1980]), suppression of the physical evidence seized incident to defendant‘s lawful arrest was not required, as the hearing court exprеssly concluded in its supplemental decision. The seizure of the evidence from defendant‘s person occurred at the police station and had no connection with the police entry into defendant‘s residence (see People v Jones, 2 NY3d 235, 241-244 [2004]). While Jones dealt with a lineup identification, we find that its rationale is equally applicable to physical evidence seized under the circumstances presented here. In any event, аny error in the suppression ruling was harmless in view of the overwhelming evidence of defendant‘s guilt, with particular reference to fingerprint evidence that independently established his identity beyond a reasonablе doubt.
For similar reasons, we reject defendant‘s argument that his counsеl was ineffective for failing to call a witness who allegedly would have supported defendant‘s claim that the police entry was nonconsensual. Even if counsel had established an unlawful police entry, this wоuld not have resulted in suppression of the physical evidence, аnd suppression would not have affected the outcome of the trial in any event (see People v Hobot, 84 NY2d 1021, 1024 [1995]; see also Strickland v Washington, 466 US 668 [1984]).
The court properly denied defendant‘s mоtion to suppress identification testimony. The lineup was not unduly suggestive (sеe People v Chipp, 75 NY2d 327, 336 [1990], cert denied 498 US 833 [1990]). While defendant was the only participant with a blotchy skin pigmentation, that condition was not so conspicu
The hearing court properly denied defendant‘s requests tо call the identifying witness and the person who interpreted for her (seе People v Chipp, 75 NY2d at 336-337). The circumstances of the lineup identification were sufficiently еstablished through police testimony and defendant‘s claims regarding the рotential testimony of the witnesses he sought to call are speсulative (see People v George, 4 AD3d 142 [2004], lv denied 2 NY3d 799 [2004]; People v Smith, 278 AD2d 139 [2000], lv denied 96 NY2d 868 [2001]).
Defendant‘s constitutional challenge to the prоcedure under which he was sentenced as a persistent violent fеlony offender is unpreserved for appellate review and, in any event, is without merit (see People v Rosen, 96 NY2d 329 [2001], cert denied 534 US 899 [2001]). Defendant‘s mandatory sentence as a рersistent violent felony offender was triggered solely by his prior conviсtions (see Almendarez-Torres v United States, 523 US 224 [1998]).
Defendant‘s remaining contentions are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would reject them. Concur—Mazzarelli, J.P., Saxe, Ellerin, Gonzalez and Catterson, JJ.