People v. Mitchell

283 A.D.2d 593, 724 N.Y.S.2d 898, 2001 N.Y. App. Div. LEXIS 5319

Opinion

—Appeals by the defendant from (1) a judgment of the Supreme Court, Kings County (Tomei, J.), rendered February 23, 1998, convicting him of robbery in the first degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence, and (2) a resentence of the same court, rendered November 16, 1998. The appeals bring 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 and the resentence are affirmed.

The hearing court correctly concluded that the lineup was not unduly suggestive (see, People v Chipp, 75 NY2d 327). Furthermore, contrary to the defendant’s contention, the hearing court properly denied his request to call the complainant as a witness at the hearing (see, People v Chipp, supra, at 337-338).

The defendant’s contention that the evidence was legally insufficient to establish his identity beyond a reasonable doubt is unpreserved for appellate review (see, People v Gray, 86 NY2d 10; CPL 470.05 [2]; People v Leschenko, 278 AD2d 432). In any event, viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), 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). Friedmann, J. P., Goldstein, Feuerstein and Crane, JJ., concur.