Opinion
June 17, 1985
Appeal from the Supreme Court, Westchester County (Brewster, J.).
Judgment affirmed.
Defendant failed to raise his objections as to the lawfulness of his detention by the police in the court of first instance and therefore failed, as a matter of law, to preserve his claim for appellate review (CPL 470.05; People v. Martin, 50 N.Y.2d 1029; People v. Tutt, 38 N.Y.2d 1011; People v. Chirasello, 99 A.D.2d 759). In any event, we find that the police had probable cause to arrest defendant. The arresting officers observed him running while approximately one quarter of a mile away from the scene of the robbery just a few minutes after the crime occurred. The officers also observed that defendant fit the eyewitness' description of the robber as to height, skin color, and the presence of a mustache. In addition, defendant was carrying a coat similar to that described by the victim and behaved nervously when he spotted the police car. Under such circumstances, probable cause to arrest was present ( see, People v. Brnja, 50 N.Y.2d 366).
Likewise, we find unpersuasive defendant's contention that the ensuing showup identification procedure was so unduly suggestive as to violate due process. It is clear from the record before us that the showup conducted by the police at the scene of defendant's apprehension just minutes after the robbery, although far from perfect, did not expose defendant to a substantial risk of irreparable misidentification ( see, Neil v. Biggers, 409 U.S. 188; People v. Digiosaffatte, 63 A.D.2d 703). Moreover, the evidence clearly supports the hearing court's determination that the victim's observation of defendant for several minutes at close range and in broad daylight during the commission of the crime constituted an independent source for the in-court identification of defendant ( see, People v. Malloy, 55 N.Y.2d 296, cert denied 459 U.S. 847; People v. Pleasant, 54 N.Y.2d 972, cert denied 455 U.S. 924; People v. Thompson, 97 A.D.2d 554). Finally, we note that the sentence imposed was well within the bounds of both the applicable statute and sound judicial discretion, and was neither harsh nor excessive ( see, People v. Farrar, 52 N.Y.2d 302; People v. Flores, 101 A.D.2d 657). Lazer, J.P., Gibbons, O'Connor and Brown, JJ., concur.