Opinion
December 21, 1987
Appeal from the Supreme Court, Kings County (Hayes, J.).
Ordered that the judgment is affirmed.
Evidence of a showup identification must be suppressed if it is found, under the totality of the circumstances, that the confrontation between the witness and the defendant was so unnecessarily suggestive and conducive to irreparable mistaken identification that the defendant was denied due process of the law (see, People v Smith, 38 N.Y.2d 882). Less than ideal procedures may be tolerable in the interest of prompt identification especially if the defendant was apprehended in close temporal and spatial proximity to the crime scene (see, People v Love, 57 N.Y.2d 1023; People v Digiosaffatte, 63 A.D.2d 703). The defendant has failed to establish that his on-the-scene showup identification by the complainant Roger Knights constituted an improper police procedure, especially since the showup was conducted in close temporal and spatial proximity to the commission of the alleged crime and since the police were justified in seeking an identification of possibly innocent persons on the premises.
The defendant has not demonstrated how the denial of his motion for a severance prejudiced his case. His conclusory allegations that codefendant Laron's conduct during trial denied him a fair trial are not supported by the record. Moreover, there was not a substantial difference in the quantity and quality of evidence which the People presented with respect to the defendant and to the codefendant such that a separate trial would have assisted the proper administration of justice (see, People v Snyder, 246 N.Y. 491, 497; People v Bornholdt, 33 N.Y.2d 75, cert denied sub nom. Victory v New York, 416 U.S. 905; People v Kampshoff, 53 A.D.2d 325, cert denied 433 U.S. 911).
The defendant has also failed to demonstrate that genuine appealable issues exist in the missing pages of the trial transcript and that alternative methods of providing an adequate record were not available to him. Accordingly, he is not entitled to reversal of his conviction upon that ground (see, People v Glass, 43 N.Y.2d 283; People v Smalls, 116 A.D.2d 675, lv denied 67 N.Y.2d 890). Moreover, upon the exercise of our factual review power, we are satisfied that the evidence established the defendant's guilt beyond a reasonable doubt and that the verdict was not against the weight of the evidence (CPL 470.15).
Contrary to the defendant's claim that he has been twice placed in jeopardy for the same offense, it is clear that his acquittal at his first trial of criminal possession of a weapon in the fourth degree and his subsequent conviction of robbery in the first and second degrees at this second trial did not violate this constitutional right (see, People v Prescott, 66 N.Y.2d 216, cert denied 475 U.S. 1150; People v Rivera, 60 N.Y.2d 110). Neither robbery in the first degree nor robbery in the second degree charges concern the same offense as criminal possession of a weapon in the fourth degree within the meaning of the double jeopardy clause, since the Penal Law definitions of the robbery require proof of facts which are not necessary to establish the elements of criminal possession of a weapon in the fourth degree (see, People v Prescott, supra; see, People v Artis, 74 A.D.2d 644).
Finally, we find that the defendant waived his right to be present at his predicate felony hearing and sentence since the evidence presented at that hearing established that he knew when he refused to attend that the hearing court would proceed in his absence (see, People v Corley, 67 N.Y.2d 105).
We have considered the defendant's remaining contentions and find them to be unpreserved for appellate review, and, in any event, to be without merit. Thompson, J.P., Brown, Eiber and Sullivan, JJ., concur.