People v. Phillips

234 A.D.2d 57, 651 N.Y.S.2d 28, 1996 N.Y. App. Div. LEXIS 12310

Opinion

—Judgment, Supreme Court, New York County (Patricia Williams, J., at hearing; Harold Rothwax, J., at plea and sentence), rendered July 14,1993, convicting defendant of assault in the first degree and criminal possession of a weapon in the second degree, and sentencing him to concurrent terms of 5 to 15 years, unanimously affirmed.

We reject defendant’s contention that the court should have suppressed the identification testimony of a witness who saw defendant in custody outside of the police station shortly after the crime, since the hearing testimony established that the identification was not police arranged, the product of any police misconduct, or unduly suggestive under the circumstances (see, People v Clark, 85 NY2d 886; People v Buie, 226 AD2d 215, lv denied 88 NY2d 934; People v Nimmons, 177 AD2d 444, lv denied 79 NY2d 922). Defendant was not entitled to have the witness testify at the suppression hearing, since no substantial issue regarding the constitutionality of the identification existed (see, People v Chipp, 75 NY2d 327, 338, cert denied 498 US 833). Finally, we perceive no abuse of discretion in sentencing. Concur—Ellerin, J. P., Wallach, Kupferman, Nardelli and Tom, JJ.