People v. Gaston

239 A.D.2d 356, 657 N.Y.S.2d 975, 1997 N.Y. App. Div. LEXIS 4555

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 5, 1997
• Status: Published

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Golia, J.), rendered January 4, 1995, convicting him of robbery in the first degree, criminal possession of stolen property in the fourth degree, and reckless endangerment in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress identification testimony.

Ordered that the judgment is affirmed.

The defendant contends that the verdict should have been set aside because the complainant’s testimony revealed that the showup identification procedure was unduly suggestive. This issue was not preserved for appellate review since the defendant failed to move for a mistrial or to reopen the Wade hearing (see, People v Ore, 157 AD2d 749; People v Udzinski, 146 AD2d 245). In any event, the defendant’s contention is not supported by the record. Given the temporal and spatial proximity of the showup identification to the commission of the crimes, and the circumstances under which the showup was made, we hold that the identification procedure was not so unnecessarily suggestive as to create a substantial likelihood of misidentification (see, People v Duuvon, 77 NY2d 541).

The defendant’s remaining contentions are either unpreserved for appellate review or without merit. Bracken, J. P., Copertino, Santucci and Altman, JJ., concur.