People v. Ortiz

246 A.D.2d 559, 666 N.Y.S.2d 929, 1998 N.Y. App. Div. LEXIS 198

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Silverman, J.), rendered August 1, 1996, convicting him of robbery in the second degree and assault in the second 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 which was to suppress identification testimony.

Ordered that the judgment is affirmed.

Contrary to the defendant’s contention, the court properly denied his motion to suppress identification testimony inasmuch as the evidence elicited at the Wade hearing established that the lineup was not impermissibly suggestive (see, People v Chipp, 75 NY2d 327, 335-336, cert denied 498 US 833). To the extent the defendant relies on the complainant’s trial testimony in making his argument, we note that trial testimony may not be considered in evaluating a suppression ruling on appeal (see, People v Riley, 70 NY2d 523, 532; People v Diaz, 194 AD2d 688, 689).

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 defendant’s remaining contentions are either unpreserved for appellate review or without merit. Bracken, J. P., O’Brien, Thompson and Altman, JJ., concur.