Appeal by the defendant from a judgment of the Supreme Court, Queens County (Sharpe, J.), rendered November 17, 1983, convicting him of robbery in the first degree, rоbbery in the second degree, and criminal possession of stolen property in the third degree, upon a jury verdict, and imposing sentence. Thе appeal brings up for review the denial, after a hearing (Giaccio, J.), of those branches of the defendant’s omnibus motion which were tо suppress identification testimony and physical evidence.
Presiding Justice Mollen has been substituted for the late Justice Gibbons (see, 22 NYCRR 670.2 [c]).
A mistrial was declarеd during the defendant’s first trial because, in response to a question from the prosecutor as to the first thing he did in his investigation, a police officеr testified that he looked in his files to see if the names of the defendant and his codefendant Oscar Williams were there and that their names were in fact listed. During the second trial, which resulted in the judgment now being appealed from, the defendant sought dismissal of the indictment on the ground of double jеopardy. We find that a retrial was not barred on this ground (see, Matter of Potenza v Kane,
Contrary to the defendant’s contentions, we also find that there was probable cause for his arrest and that those branches of his omnibus motion which were to suppress an out-of-court identification, in-court identification testimony, аnd physical evidence were correctly denied.
The suppression hearing testimony revealed that on April 14, 1983, at approximately 11:30 p.m., the arresting officer, Richard Vergara, and his partner, were on patrol in an unmarked police car when they received a radio call that two black males driving a late model four-door black Mercury Zephyr automobile bearing livery license plates were wantеd in connection with a nearby robbery in which shots had been fired. Continuing on patrol, the officers shortly thereafter observed a car matching the description of the one given in the radio call. The vehicle was stopped but its engine was on. When the officers stopped and baсked up, the driver of the Mercury, the codefendant Oscar Williams, looked at the officers, exited the car, and ran away.
There was further tеstimony that Officer Vergara went to the Mercury, turned off the ignition, and removed the keys. He and his partner then started in pursuit of Williams. As they walked in the direсtion in which Williams had fled, the officer observed the defendant Herbert Lewis exit a nearby residence, walk up to the car, and attempt to open the door. At this point, Officer Vergara ordered the defendant to "freeze”. Because of the radio report that shots had been fired during the robbery, the officers frisked and searched the defendant for a gun. Nine .22 caliber bullets were found in his pants pocket, at which point the defendant was placed under arrest. The complainant was shortly thereafter brought to the scene, at which time he identified the defendаnt as one of the robbers. After being taken to the precinct, the defendant was
The defendant sought suppression of the identification and physical evidence. We find that there is no basis to do so. When thе officers saw the defendant attempt to open the door of the car, presumably with the intention of entering it and driving away, they had reasоnable suspicion that the defendant had also been involved in the robbery, especially since the radio transmission specified that two blaсk males had committed the robbery. Where officers have reasonable suspicion to stop an individual, as well as reasonable grounds to believe that he may be armed with a gun, they may then pat down or frisk the individual for their own protection (see, People v Davis,
Furthermore, the sum total of the officers’ knowledge was at that point sufficient to give them probable cause to arrest the defendant (see, People v McRay,
We also agree with the hearing court’s determination that the showup identification of the defendant was not unnecessarily suggestive. The complainant ran to a police station within an hour after the crime occurred and reported the incident. While at the precinct, he was told that two men had been apprehended but that the police were not sure whether or not they were the robbers; they wanted the complainant to view the men. He was then transported in a police car to a location where he saw the defendant, handcuffed, standing among many uniformed police officers. The complainant immediately told the officers that defendant was one of the robbers. He stated that he recognized the defendant the minute he saw him, and prior to observing that the defendant was handcuffed. The complainant had told thе police that the robbers were black; he did not recall whether any of the
The underlying rationale favoring a showup identificаtion is that "based on fresh recollections of recent events, they insure reliable identifications of perpetrators and the promрt release of innocent suspects” (People v Soto,
In any event, there was an independent source for the complainant’s in-court identification testimony. The basis of the in-court identification was the complainant’s observation of the defendant during the incident, and not the allegedly tainted procedure (see, People v Lloyd,
We have reviewed the defendant’s other contentions and find them to be either unpreserved or to be without merit. Mollen, P. J., Thompson, Eiber and Spatt, JJ., concur.