People v. Mendoza

Appellate Division of the Supreme Court of New York

People v. Mendoza

293 A.D.2d 326, 739 N.Y.S.2d 822, 2002 N.Y. App. Div. LEXIS 3615

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 11, 2002

StatusPublished

Cited by2 cases

This text of 293 A.D.2d 326 (People v. Mendoza) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Mendoza, 293 A.D.2d 326, 739 N.Y.S.2d 822, 2002 N.Y. App. Div. LEXIS 3615 (N.Y. Ct. App. 2002).

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Opinion

Judgment, Supreme Court, New York County (Dorothy Cropper, J., at suppression hearing; Budd Goodman, J., at jury trial and sentence), rendered March 23, 2000, convicting defendant of burglary in the second degree and criminal possession of stolen property in the fifth degree, and sentencing him, as a persistent violent felony offender, to concurrent terms of 20 years to life and one year, respectively, unanimously affirmed.

Defendant’s motion to suppress identification testimony was properly denied. The complainant’s arrival at the scene of defendant’s arrest and spontaneous identification of defendant was not a police-arranged identification procedure (see, People v Clark, 85 NY2d 886, 888-889; People v Dixon, 85 NY2d 218, 223). In any event, even if we were to view the encounter as a showup, we would find no basis for suppression, since it was prompt, on-the-scene and not unduly suggestive (see, People v Duuvon, 77 NY2d 541).

The complainant’s testimony, read as a whole and in context, established that he was unable to make an in-court identification because of the lapse of time and defendant’s change in appearance. Therefore, the court properly admitted third-party testimony concerning the complainant’s out-of-court identification of defendant (see, CPL 60.25 [1] [a]; People v Nival, 33 NY2d 391, 395, cert denied 417 US 903). In any event, were we to find any error in this regard, we would find it to be harmless [327]*327because the evidence connecting defendant to the burglary would have been overwhelming even in the absence of any identification testimony.

Defendant’s constitutional challenge to the procedure under which he was sentenced as a persistent violent felony offender is unpreserved for appellate review and, in any event, is without merit (see, People v Rosen, 96 NY2d 329, cert denied 534 US —, 122 S Ct 224).

We perceive no basis for a reduction of sentence. Concur— Tom, J.P., Buckley, Sullivan, Ellerin and Wallach, JJ.

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Judgment, Supreme Court, New York County (Dorothy Cropper, J., at suppression hearing; Budd Goodman, J., at jury trial and sentence), rendered March 23, 2000, convicting defendant of burglary in the second degree and criminal possession of stolen property in the fifth degree, and sentencing him, as a persistent violent felony offender, to concurrent terms of 20 years to life and one year, respectively, unanimously affirmed.

Defendant’s motion to suppress identification testimony was properly denied. The complainant’s arrival at the scene of defendant’s arrest and spontaneous identification of defendant was not a police-arranged identification procedure (see, People v Clark, 85 NY2d 886, 888-889; People v Dixon, 85 NY2d 218, 223). In any event, even if we were to view the encounter as a showup, we would find no basis for suppression, since it was prompt, on-the-scene and not unduly suggestive (see, People v Duuvon, 77 NY2d 541).

The complainant’s testimony, read as a whole and in context, established that he was unable to make an in-court identification because of the lapse of time and defendant’s change in appearance. Therefore, the court properly admitted third-party testimony concerning the complainant’s out-of-court identification of defendant (see, CPL 60.25 [1] [a]; People v Nival, 33 NY2d 391, 395, cert denied 417 US 903). In any event, were we to find any error in this regard, we would find it to be harmless [327]*327because the evidence connecting defendant to the burglary would have been overwhelming even in the absence of any identification testimony.

Defendant’s constitutional challenge to the procedure under which he was sentenced as a persistent violent felony offender is unpreserved for appellate review and, in any event, is without merit (see, People v Rosen, 96 NY2d 329, cert denied 534 US —, 122 S Ct 224).

We perceive no basis for a reduction of sentence. Concur— Tom, J.P., Buckley, Sullivan, Ellerin and Wallach, JJ.

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293 A.D.2d 326, 739 N.Y.S.2d 822, 2002 N.Y. App. Div. LEXIS 3615, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-mendoza-nyappdiv-2002.

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