People v. Morris

186 A.D.2d 44, 587 N.Y.S.2d 649, 1992 N.Y. App. Div. LEXIS 10597

Opinion

Judgment, Supreme Court, Bronx County (John P. Collins, J.), rendered March 14, 1991, convicting defendant, after a jury trial, of robbery in the first degree, and which sentenced him as a second violent felony offender, to a term of 6 to 12 years imprisonment, unanimously affirmed.

There is no merit to defendant’s argument that the hearing court violated his right to due process by denying his request to call the complaining witness at the Wade hearing. "A defendant does not have an absolute right to call a complainant at the Wade hearing absent some indicia of the suggestiveness of the identification procedure employed” (People v Peterkin, 75 NY2d 985, 986). Neither the thirty minute delay between commission of the crime and the showup that was conducted at the scene nor the inconsistency between the testimony of the complainant at the time of trial and that of the People’s other witnesses at the Wade hearing demonstrate such suggestiveness.

In conclusion we decline to address the claim that third degree robbery should have been charged as a lesser included offense as unpreserved, the defendant having neither requested such a charge, nor excepted to its not being given (see, People v Buckley, 75 NY2d 843, 846). Concur—Rosenberger, J. P., Asch, Kassal and Rubin, JJ.