People v. Nunez

237 A.D.2d 627, 655 N.Y.S.2d 1013, 1997 N.Y. App. Div. LEXIS 2977

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 31, 1997
• Status: Published

Opinion

Appeal by the defendant (1) from a judgment of the Supreme Court, Queens County (Appelman, J.), rendered March 13, 1992, convicting him of robbery in the first degree (two counts), robbery in the second degree (two counts), and burglary in the first degree, upon his plea of guilty, and imposing sentence, and (2), by permission, from an order of the same court, dated August 29, 1994, which denied his motion pursuant to CPL 440.10 to set aside the judgment. The appeal from the judgment brings 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 order are affirmed.

The record fails to establish that the defendant knowingly, intelligently, and voluntarily waived his right to appeal (see, People v Callahan, 80 NY2d 273, 283; People v Geraghty, 224 AD2d 544; People v Dewberry, 223 AD2d 555; People v Cohen, 210 AD2d 343; People v McCaskell, 206 AD2d 547; People v Santiago, 194 AD2d 468). However, the defendant’s assertion that the lineup was suggestive is lacking in merit (see, People v Eldridge, 213 AD2d 667; People v Harris, 187 AD2d 530). Lastly, the court properly denied the defendant’s motion to vacate the judgment pursuant to CPL 440.10 (see, e.g., People v Connolly, 181 AD2d 739; People v Ostuni, 165 AD2d 838; see also, People v Prochilo, 41 NY2d 759). Rosenblatt, J. P., Thompson, Altman and Luciano, JJ., concur.