People v. Dukes

156 A.D.2d 959, 549 N.Y.S.2d 255, 1989 N.Y. App. Div. LEXIS 16119

Opinion

Judgment unanimously affirmed. Memorandum: On appeal from a judgment convicting him of petit larceny, defendant contends that the court erred in refusing to suppress a witness’s in-court identification testimony; that the court erred in refusing to permit the jury to determine whether defendant’s postarrest statement was voluntarily made; that his sentence is illegal; and that his sentence is harsh and excessive. None of defendant’s claims has merit.

The record supports the hearing court’s determination that the witness had an independent basis for his identification of defendant. The witness’s testimony at the Wade hearing established that he had observed defendant three or four times over the span of 15 minutes prior to the break-in and had an unobstructed view of defendant’s face from a distance of approximately six feet when defendant jumped from the upper porch and scooped up the coins. The court did not err in refusing to submit the issue of the voluntariness of defendant’s statement to the jury. Defense counsel did not object to the officer’s testimony about the statements, nor did he raise a factual dispute with respect to the statement by either direct or cross-examination (see, People v Cefaro, 23 NY2d 283, 288-289). Defendant’s challenge to his sentence is moot as the sentence has already been served. (Appeal from judgment of Supreme Court, Erie County, Kubiniec, J. — petit larceny.) Present — Denman, J. P., Boomer, Pine, Balio and Davis, JJ.