People v. Santogual

282 A.D.2d 625, 722 N.Y.S.2d 914, 2001 N.Y. App. Div. LEXIS 3774

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 16, 2001
• Status: Published

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Bruno, J.), rendered December 15, 1997, convicting him of rape in the first degree, robbery in the first degree, and sexual abuse in the first degree (three counts), upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Hall, J.), of that branch of the defendant’s omnibus motion which was to suppress identification testimony.

Ordered that the judgment is affirmed.

The hearing court properly denied that branch of the defendant’s omnibus motion which was to suppress the complainant’s identification of him. The complainant had spontaneously identified the defendant as her assailant upon seeing him at her place of work. Therefore, her viewing of the defendant at the police station was merely confirmatory (see, People v Griffin, 161 AD2d 799, 801; People v Knight, 156 AD2d 588, 589; People v Kelley, 144 AD2d 386).

The defendant contends that the second count of the indictment, containing one of the counts of sexual abuse in the first degree, should have been dismissed as a non-inclusory concurrent count of rape in the first degree. His contention is not preserved for appellate review, as he failed to move to dismiss the second count of the indictment at trial (see, People v Rodriguez, 126 AD2d 681, 682). In any event, it is without merit (see, People v Reed, 222 AD2d 459; People v Peterson, 68 AD2d 938). Ritter, J. P., Krausman, S. Miller and Feuerstein, JJ., concur.