People v. O'Rourke

307 A.D.2d 268, 761 N.Y.S.2d 872

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 7, 2003
• Status: Published

Opinion

Appeal by the defendant from a judgment of the County Court, Rockland County (Nelson, J.), rendered August 17, 1999, convicting him of attempted burglary in the third degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion was to suppress identification testimony.

Ordered that the judgment is affirmed.

Contrary to the defendant’s contentions, the hearing court correctly refused to suppress his showup identification merely because the showup was conducted in the presence of police officers and their marked patrol cars (see People v Smith, 203 AD2d 396 [1994]). The showup identification also was not unduly suggestive (see People v Cleon, 281 AD2d 554, 555 [2001]).

Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), 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 [1982]). Ritter, J.P., Friedmann, H. Miller and Townes, JJ., concur.