Opinion
March 27, 1989
Appeal from the Supreme Court, Kings County (Owens, J.).
Ordered that the judgment is affirmed.
Under the circumstances of this case, the hearing court properly denied the defendant's motion to suppress testimony regarding his hospital showup identifications. The showup took place in close spatial and temporal proximity to the robbery and both the victim and her boyfriend, who witnessed part of the crime, identified the defendant and one of his two accomplices, who had been apprehended along with the defendant several blocks from the crime scene. Accordingly, we conclude that the showup was not unduly suggestive or conducive to mistaken identification (see, People v. Love, 57 N.Y.2d 1023; People v. Thompson, 129 A.D.2d 655; People v. Gilliard, 116 A.D.2d 657, lv denied 67 N.Y.2d 943). Moreover, we note that the People proved by clear and convincing evidence that there was an independent source for the victim's in-court identification of the defendant (see, Manson v. Brathwaite, 432 U.S. 98; People v Adams, 53 N.Y.2d 241).
The defendant also argues that he was denied his constitutional right to effective assistance of counsel on the ground, among others, that his trial counsel failed to call two available alibi witnesses and advised the defendant not to take the stand in support of an alibi defense. Because these claims are based on matters outside of the record, they cannot be raised on direct appeal.
We have examined the remaining contentions advanced by the defendant and find them to be either unpreserved for appellate review or without merit. Bracken, J.P., Kunzeman, Spatt and Harwood, JJ., concur.