Opinion
2014-07-3
The PEOPLE of the State of New York, Respondent, v. Rafael BAYRON, etc., Defendant–Appellant.
Steven Banks, The Legal Aid Society, New York (Amy Donner of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Emily L. Auletta of counsel), for respondent.
Steven Banks, The Legal Aid Society, New York (Amy Donner of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Emily L. Auletta of counsel), for respondent.
Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered January 31, 2012, convicting defendant, upon his plea of guilty, of persistent sexual abuse, and sentencing him, as a second felony offender, to a term of three years, unanimously affirmed.
Defendant's motion to suppress identification testimony was properly denied without a hearing. Although defendant asserted in his moving papers that there was a factual issue as to whether the identification was police-arranged, he did so in conclusory terms. Furthermore, defendant did not dispute the detailed factual assertions in the People's response, which set forth a sequence of events establishing that the identification was completely civilian-initiated and not police-arranged, and was therefore outside the category of identifications subject to Wade hearings ( see People v. Dixon, 85 N.Y.2d 218, 222–223, 623 N.Y.S.2d 813, 647 N.E.2d 1321 [1995] ). Accordingly, there was no factual issue requiring a hearing ( see People v. Lewis, 258 A.D.2d 287, 685 N.Y.S.2d 51 [1st Dept.1999] ).
Defendant did not preserve his claim that the court improperly relied on grand jury minutes in denying a hearing, and we decline to review it in the interest of justice. As an alternative holding, we find that it was permissible for the court to review the grand jury minutes simply to confirm the facts asserted in the People's response ( see People v. Rumph, 248 A.D.2d 142, 670 N.Y.S.2d 68 [1st Dept.1998], lv. denied92 N.Y.2d 860, 677 N.Y.S.2d 91, 699 N.E.2d 451 [1998] ). FRIEDMAN, J.P., SWEENY, ANDRIAS, SAXE, KAPNICK, JJ., concur.