Opinion
January 16, 1990
Appeal from the Supreme Court, Kings County (Egitto, J.).
Ordered that the judgment is affirmed.
Assuming, without deciding, that the defendant's Payton and Dunaway claims (see, US Const 4th, 14th, Amends; Payton v New York, 445 U.S. 573; Dunaway v. New York, 442 U.S. 200) are properly before us despite his failure to raise these issues in his omnibus motion (cf., CPL 710.60; People v. Gomez, 67 N.Y.2d 843; People v. Pavesi, 144 A.D.2d 392; People v. Jordan, 122 A.D.2d 224), we conclude that the defendant was not entitled to suppression of his statement. The evidence produced at the hearing held in connection with the defendant's motion establishes that his arrest was based upon a prior photographic identification by a witness to his crime so that probable cause unquestionably existed (see, People v. Brewster, 100 A.D.2d 134, affd 63 N.Y.2d 419; People v. Palacio, 121 A.D.2d 282; People v Rhodes, 111 A.D.2d 194). The evidence further establishes that the defendant consented to the police entry into his apartment (see, People v. Dubois, 140 A.D.2d 619; People v. Davis, 120 A.D.2d 606; People v. Taylor, 111 A.D.2d 520). Mangano, J.P., Bracken, Kooper and Sullivan, JJ., concur.