People v. Francischelli

303 A.D.2d 521, 756 N.Y.S.2d 447, 2003 N.Y. App. Div. LEXIS 2350

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 10, 2003
• Status: Published

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Rosengarten, J.), rendered May 15, 2001, convicting him of robbery in the second degree (two counts), criminal possession of a weapon in the fourth degree, and criminal possession of stolen property in the fifth degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Spires, J.), of that branch of the defendant’s omnibus motion which was to suppress identification testimony. Presiding Justice Prudenti has been substituted for the late Justice O’Brien (see 22 NYCRR 670.1 [c]).

Ordered that the judgment is affirmed.

Contrary to the defendant’s contention, the Supreme Court properly denied that branch of his omnibus motion which was to suppress identification testimony. The showup identification was conducted in close temporal and geographic proximity to the crime (see People v Ortiz, 90 NY2d 533, 537 [1997]; People v Duuvon, 77 NY2d 541, 543 [1991]), and the defendant was not handcuffed or restrained by the plainclothes officers who were with him (see People v Brown, 181 AD2d 615 [1992]).

Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), 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 sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).

The defendant’s remaining contention is without merit. Prudenti, P.J., Feuerstein, McGinity and H. Miller, JJ., concur.