People v. Simmons

266 A.D.2d 321, 698 N.Y.S.2d 503, 1999 N.Y. App. Div. LEXIS 11289

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Eng, J.), rendered January 8, 1998, convicting him of burglary in the first degree (two counts), criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree (two counts), upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Spires, J.), of that branch of the defendant’s omnibus motion which was to suppress identification evidence.

Ordered that the judgment is affirmed.

The defendant contends that the police unlawfully arrested him in his apartment without a warrant and that this Payton violation (see, Payton v New York, 445 US 573; People v Minley, 68 NY2d 952, 953) requires the suppression of the complainant’s subsequent lineup identification of him. The hearing court determined that no Payton violation occurred because the defendant was outside of his apartment when the arrest occurred (see, People v Land, 198 AD2d 438; People v Anderson, 146 AD2d 638, 640). We decline to disturb that determination, as it is supported by the record (see, People v Prochilo, 41 NY2d 759, 761).

The defendant’s remaining contentions are without merit. O’Brien, J. P., Ritter, Santucci and Thompson, JJ., concur.