Opinion
December 3, 1998
Appeal from the Supreme Court, Bronx County (William Donnino, J., at suppression hearing; Gerald Sheindlin, J., at jury trial and sentence).
The hearing court properly denied defendant's motion for suppression of the showup identifications, as well as defendant's application to call the complainants at the hearing. It was an appropriate exercise of discretion to deny defendant's application to call the complainants, since there was no evidence to support defendant's purely speculative claim that the police improperly influenced the identifications (see, People v. Taylor, 80 N.Y.2d 1, 15; see also, People v. Stafford, 215 A.D.2d 212, lv denied 86 N.Y.2d 784). There was no showing that the showup procedure, conducted in close temporal and spatial proximity to the crime, was so suggestive as to create a substantial likelihood of misidentification (see, People v. Duuvon, 77 N.Y.2d 541).
The verdict was not against the weight of the evidence. As this Court has previously ruled in connection with the appeal of the codefendant, "The issues relating to the reliability of identification testimony and credibility of witnesses were properly presented for the jury's consideration, and the record provides no basis for disturbing its determinations" (People v. Evans, 245 A.D.2d 87, lv denied 91 N.Y.2d 925).
The court properly instructed the jury regarding the contested issue of identification by stating the material legal principles and explaining the application of the law to the facts (supra). In addition, the court appropriately balanced the charge by outlining the contentions of defendant and the codefendant regarding the alleged unreliability of the identification evidence (see, People v. Olivera, 168 A.D.2d 361, lv denied 78 N.Y.2d 957).
Defendant did not preserve his current claim that a previous violent felony conviction was improperly utilized for sentence enhancement purposes (People v. Oliver, 63 N.Y.2d 973; People v. Ehrenberg, 236 A.D.2d 420, lv denied 89 N.Y.2d 1011), and we decline to review it in the interest of justice. Were we to review this claim, we would find that, since defendant conceded in his pre-sentence memorandum that the ten-year limitation on the use for sentence enhancement purposes of his, 1980 conviction was tolled by his 6 1/2 year period of incarceration, the 1980 conviction was properly utilized in determining defendant's status as a persistent violent felony offender, and any omission in the People's predicate violent felony offender statement was rendered harmless (see, People v. Bouyea, 64 N.Y.2d 1140).
Concur — Rosenberger, J. P., Wallach, Rubin and Saxe, JJ.