Opinion
June 23, 1992
Appeal from the Supreme Court, New York County (Joan C. Sudolnik, J.).
Evidence at trial was that defendant and codefendants Pat Santoli and Fred D'Amico were the principal participants in a group attack upon three young men as they left a Manhattan dance club. As a result of blows administered to the face and body with a wooden board, one of the victims suffered a broken jaw, a broken nose, fractured bones, and lacerations so severe that bone was exposed. That victim identified defendant as one of his attackers both at a showup procedure and at trial. Because one of the other victims was unable to positively identify defendant at trial due to lapse of time and change of appearance, the police officer who had conducted the on-the-scene showups properly testified, without objection, that defendant was identified by that witness through the showup procedure (see, People v. Lagana, 36 N.Y.2d 71, 74, cert denied 424 U.S. 942). Additionally, defendant was observed in the act of dragging that victim along the ground by a police officer who had responded to the scene.
Viewing the evidence in the light most favorable to the People and giving them the benefit of every reasonable inference (People v. Malizia, 62 N.Y.2d 755, cert denied 469 U.S. 932), defendant's guilt of assault in the second degree, on an acting in concert theory, was overwhelmingly established (People v Bleakley, 69 N.Y.2d 490). The jury's determination to credit the testimony of the People's witnesses and to discredit the testimony of defendant and codefendant D'Amico that they had no part in the altercation other than to defend themselves from attack, not unreasonable, will not be disturbed by this Court (see, e.g., People v. Fonte, 159 A.D.2d 346, lv denied 76 N.Y.2d 734).
The hearing court properly denied defendant's application to call either or both of the identifying witnesses at the Wade hearing for the purpose of probing the question of whether or not they simultaneously viewed the on-the-scene showups. As the hearing court noted, the circumstances herein allowed a less-than-ideal showup procedure in the interest of prompt identification where there was no evidence of police suggestiveness in selecting numerous subjects that fit the descriptions of the attackers from the surrounding crowd, and then merely asking them to walk past the victims (in or around a waiting ambulance), who each, in turn, identified defendant and codefendants Santoli and D'Amico (see, e.g., People v. Love, 57 N.Y.2d 1023, 1024-1025).
Concur — Murphy, P.J., Milonas, Rosenberger, Ross and Smith, JJ.