People v. Whilby

277 A.D.2d 407, 716 N.Y.S.2d 879, 2000 N.Y. App. Div. LEXIS 12136

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 20, 2000
• Status: Published

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Bárbaro, J.), rendered July 6, 1999, convicting him of robbery in the first degree (two counts) and criminal possession of a weapon 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 and statements he made to law enforcement authorities.

Ordered that the judgment is affirmed.

The defendant’s motion to dismiss the indictment was properly denied despite the inaccurate testimony of one of the complainants, which was unintentionally introduced before the Grand Jury. There was sufficient evidence independent of this testimony to support the indictment (see generally, People v Huston, 88 NY2d 400, 409).

The hearing court correctly denied that branch of the defendant’s omnibus motion which was to preclude identification testimony (see, People v Canute, 190 AD2d 745; People v Ocasio, 183 AD2d 921).

The record supports the hearing court’s finding that the defendant’s statements were voluntarily made after he knowingly and intelligently waived his Miranda rights (see, Miranda v Arizona, 384 US 436; People v Prochilo, 41 NY2d 759).

The defendant’s remaining contentions áre unpreserved for appellate review and, in any event, without merit. O’Brien, J. P., Thompson, H. Miller and Schmidt, JJ., concur.