People v. Smith

Apr 20, 2000
Versions:271 A.D.2d 332
707 N.Y.S.2d 154
2000 N.Y. App. Div. LEXIS 4352

—Judgment, Supreme Court, New York County (Charles Solomon, J., on omnibus motion; Marcy Kahn, J., at suppression hearing, jury trial and sentence), rendered February 13, 1997, convicting defendant of robbery in the second degree, and sentencing him, as a second felony offender, to a term of 13 years, unanimously affirmed.

The Dunaway branch of defendant’s suppression motion was properly denied without a hearing since defendant’s conclusory allegations were insufficient to raise an issue of fact as to the lawfulness of his arrest in light of his failure to controvert the specific information provided by the People as to the circumstances of the incident (see, People v Mendoza, 82 NY2d 415; People v Suggs, 268 AD2d 305; People v Rosario, 245 AD2d 151, lv denied 91 NY2d 896).

The court properly denied defendant’s motion to suppress identification testimony since the showup, which was conducted 20 to 25 minutes after the robbery, within eight blocks of the crime scene, was not unduly suggestive (see, People v Duuvon, 77 NY2d 541). Although uniformed police officers were standing near the handcuffed defendant at the time of the identifications, the witnesses viewed him while he was standing near his codefendant, and the officers told the witnesses that they would be viewing a “possible” suspect, these facts did not render the identification procedure unduly suggestive (see, People v Sanabria, 266 AD2d 41, lv denied 94 NY2d 884; People v Moore, 264 AD2d 693, lv denied 94 NY2d 826).

The challenged portions of the prosecutor’s cross-examination of defendant were proper attacks on his credibility and did not deprive him of a fair trial (see, People v Overlee, 236 AD2d 133, lv denied 91 NY2d 976).

We perceive no abuse of sentencing discretion. Concur— Rosenberger, J. P., Williams, Rubin, Saxe and Buckley, JJ.