People v. Mitchell

144 A.D.2d 1021, 1988 N.Y. App. Div. LEXIS 14582

Opinion

Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him of burglary in the first degree and criminal possession of a weapon in the fourth degree. He argues that portions of the trial testimony concerning the identification of him by the complainants demonstrate that the suppression court erred in refusing to find that the showup procedure was impermissibly suggestive. However, the propriety of that ruling must be determined only from the testimony at the Wade hearing (People v Gonzalez, 55 NY2d 720, rearg denied 55 NY2d 1038, cert denied 456 US 1010). Based on the record of the Wade hearing, we find that the showup identification was sufficiently close in time to the crime and in space to the place where defendant was stopped (see, People v Love, 57 NY2d 1023). We have examined defendant’s remaining contentions on appeal and find them to be without merit. (Appeal from judgment of Supreme Court, Erie County, Marshall, J. — burglary, first degree, and another charge). Present — Doerr, J. P., Boomer, Green, Pine and Davis, JJ.