People v. Simon

Dec 22, 1995
Versions:222 A.D.2d 1117
636 N.Y.S.2d 251
1995 N.Y. App. Div. LEXIS 14278

—Judgment unanimously affirmed. Memorandum: In support of defendant’s motion to renew the suppression motion, defense counsel asserted that newly discovered evidence warranted reopening the hearing for a determination of whether a Payton violation had occurred. County Court properly denied that motion. "Because defendant had knowledge of the facts surrounding his arrest, those facts may not be considered 'additional pertinent facts * * * discovered by the defendant which he could not have discovered with reasonable diligence before the determination of the motion’ (CPL 710.40 [4])” (People v Mitchell-Benetiz, 168 AD2d 994, lv denied 77 NY2d 909).

The showup conducted at the crime scene was not rendered unduly suggestive by the fact that defendant was viewed in the company of police officers (see, People v Duuvon, 77 NY2d 541; People v Doherty, 198 AD2d 296, lv denied 83 NY2d 804) or that the witness was advised that the police had a suspect in custody who matched the description he provided (see, People v Duuvon, supra; People v Tarrat, 161 AD2d 613).

The court did not abuse its discretion in permitting the prosecutor to cross-examine defendant with respect to the facts underlying certain prior convictions (see, People v Teen, 200 AD2d 785, lv denied 83 NY2d 859; People v Norde, 186 AD2d 456, lv denied 81 NY2d 974) or in allowing evidence rebutting the testimony of defendant’s wife (see, People v Booker, 134 AD2d 949, lv denied 70 NY2d 953).

*1118Defendant was provided sufficient opportunity to challenge his prior convictions at the persistent felony offender hearing (see, CPL 400.20; People v Maphis, 193 AD2d 829; People v Yung, 162 AD2d 874, lv denied 76 NY2d 992).

The evidence, viewed in the light most favorable to the People (see, People v Contes, 60 NY2d 620, 621) is sufficient to support the conviction. (Appeal from Judgment of Ontario County Court, Harvey, J. — Burglary, 3rd Degree.) Present— Denman, P. J., Green, Wesley, Balio and Boehm, JJ.