Opinion
1998-07051
Argued June 13, 2002.
September 18, 2002.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Tomei, J.), rendered July 27, 1998, convicting him of robbery in the first degree, reckless endangerment in the first degree, and menacing 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.
Andrew C. Fine, New York, N.Y. (Laura Lieberman Cohen of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Victor Barall, and Scott J. Splittgerber of counsel), for respondent.
Before: CORNELIUS J. O'BRIEN, J.P., WILLIAM D. FRIEDMANN, LEO F. McGINITY, HOWARD MILLER, JJ.
ORDERED that the judgment is affirmed.
The defendant's claim that the trial court should have reopened the pretrial Wade hearing (see United States v. Wade, 388 U.S. 218) based upon the testimony elicited during the trial is unpreserved for appellate review since he did not move for that relief (see CPL 470.05; People v. Feinsod, 278 A.D.2d 335, 336; People v. Johnson, 262 A.D.2d 155; People v. Meyer, 255 A.D.2d 272). The defendant's attempt to use the trial testimony to challenge the pretrial suppression ruling is impermissible (see People v. Polk, 284 A.D.2d 416, 417; People v. Feinsod, supra; People v. Andujar, 267 A.D.2d 467, 468).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80).
O'BRIEN, J.P., FRIEDMANN, McGINITY and H. MILLER, JJ., concur.