People v. Durham

234 A.D.2d 560, 651 N.Y.S.2d 910, 1996 N.Y. App. Div. LEXIS 13204

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (DeLury, J.), rendered February 2, 1995, convicting him of robbery in the first degree and grand larceny in the fourth degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Demarest, J.), of that branch of the defendant’s omnibus motion which was to suppress identification evidence.

Ordered that the judgment is affirmed.

Contrary to the defendant’s contention, the hearing court correctly determined, after finding that the station house identification was unduly suggestive, that clear and convincing evidence established an independent source for the complainant’s in-court identification of the defendant (see, People v Carney, 212 AD2d 721; People v Johnson, 211 AD2d 730; People v Brown, 187 AD2d 662; People v Daniels, 128 AD2d 631; People v Bordaux, 124 AD2d 810).

The defendant has not preserved for appellate review his challenge to the legal sufficiency of the evidence (see, CPL 470.05 [2]; People v Udzinski, 146 AD2d 245). In any event, viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15 [5]).

The defendant’s remaining contention is without merit. Mangano, P. J., Bracken, Copertino and Pizzuto, JJ., concur.