People v. Whisby

400 N.E.2d 286, 48 N.Y.2d 834, 424 N.Y.S.2d 344, 1979 N.Y. LEXIS 2478

Opinion

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendants’ contention that they have been denied their right to a speedy trial (US Const, 6th, 14th Arndts; CPL 30.20; Civil Rights Law, § 12) may not be considered by this court where defendants failed to raise the issue at trial. (People v Primmer, 46 NY2d 1048; People v Adams, 38 NY2d 605.)

We also reject the contention of each of the defendants that the in-court identification by the victim ought to have been suppressed. With respect to defendant Price, it need only be stated that there is evidence in the record to support the trial court’s factual finding, affirmed by the Appellate Division, that the in-court identification was based upon an independent source of recollection. In such a situation, this court may not disturb this finding. (People v Burrows, 46 NY2d 957; People v Peterson, 40 NY2d 1014.) With respect to defendant Whisby, the record supports the affirmed finding of fact that he was identified by the complaining witness on a public street in White Plains and that "there were no police identification procedures necessary and none, in fact, took place.” (See People v Logan, 25 NY2d 184, 193, cert den 396 US 1020.)

We have examined defendants’ remaining contentions and find them to be without merit.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order affirmed in a memorandum.