People v. Rivera

2017 NY Slip Op 27, 146 A.D.3d 421, 43 N.Y.S.3d 744

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 3, 2017
• Docket: 2621 3433/11
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Edward J. McLaughlin, J., at hearing; Richard D. Carruthers, J., at jury trial; Ronald A. Zweibel, J., at sentencing), rendered January 29, 2013, convicting defendant of three counts of robbery in the second degree, and sentencing him, as a second violent felony offender, to concurrent terms of 12 years, followed by five years of post release supervision, unanimously affirmed.

Since defendant’s suppression motion was expressly limited to a Fourth Amendment claim, his argument that his identification should have been suppressed because of an allegedly suggestive lineup is unpreserved and waived, and we decline to review it in the interest of justice. As an alternative holding, we also reject it on the merits. The hearing record does not support defendant’s claim of suggestiveness (see generally People v Chipp, 75 NY2d 327, 336 [1990], cert denied 498 US 833 [1990]), which is largely based on trial, rather than hear ing, testimony (see People v Abrew, 95 NY2d 806, 808 [2000]).

Concur — Saxe, J.P., Moskowitz, Gisehe, Kahn and Gesmer, JJ.