People v. Martindale

202 A.D.2d 158, 608 N.Y.S.2d 183, 1994 N.Y. App. Div. LEXIS 1754

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 1, 1994
• Status: Published

Opinion

—Judgment, Supreme Court, New York County (Mary McGowan Davis, J., at trial and sentence; Franklin R. Weissberg, J., at combined Wade/Mapp hearing), rendered August 15, 1991, convicting defendant, after a jury trial, of robbery in the first and second degrees, and sentencing him, as a persistent violent felony offender, to concurrent terms of from 18 years to life on the first degree robbery conviction and from 15 years to life on the second degree robbery conviction, unanimously modified, on the law and the facts, to the extent of vacating the sentence and remanding the matter for resentencing and otherwise affirmed.

Complainant, one week after having been robbed, saw defendant, told co-workers of his identification of defendant, who he espied on the street. One co-worker dialed 911 and the other followed defendant. Shortly after, defendant was arrested and the complainant identified him, while handcuffed in police custody, as the robber.

Defendant’s contention that the hearing court erred in not granting his motion to suppress the showup identification, since, inter alia, it took place a week after the crime, and in an impermissibly suggestive manner, is without merit. Since complainant had independently recognized defendant approximately 20 minutes before as the robber, the showup was merely confirmatory (People v Walker, 127 AD2d 868, lv denied 70 NY2d 718; see also, People v Soto, 198 AD2d 38, 39).

However, in view of the fact that Criminal Term misstated the minimum permissible sentence (see, Penal Law § 70.08) which defendant could receive as a persistent violent felony offender, and the People concede that error, we vacate the sentence and remand for resentencing. Concur — Murphy, P. J., Sullivan, Carro, Wallach and Tom, JJ.