Opinion
February 20, 1996
Appeal from the Supreme Court, Kings County (J. Goldberg, J.).
Ordered that the judgment is affirmed.
The defendant contends that evidence obtained as a result of an allegedly unlawful stop and search of the automobile he was driving should have been suppressed. The police are authorized to stop a vehicle and make inquiry upon "a reasonable suspicion that its occupants had been, are then, or are about to be, engaged in conduct in violation of law" ( People v. Sobotker, 43 N.Y.2d 559, 563; see, People v. Landy, 59 N.Y.2d 369, 376; People v. Mills, 198 A.D.2d 236). The hearing record demonstrates that the stop was based on reasonable suspicion, as the radio description of the vehicle used during a robbery just 15 minutes earlier and eight blocks away substantially matched that of the vehicle the defendant was driving ( see, People v. Landy, supra; People v Bianchi, 208 A.D.2d 551, 552, affd 85 N.Y.2d 1022; People v Bedoya, 190 A.D.2d 812; People v. Clark, 172 A.D.2d 679). The brief detention of the defendant and his companion at the scene for the purpose of an identification by the complainant was proper, as it occurred within close temporal and physical proximity to the robbery, and none of the circumstances indicate that the procedure was unduly suggestive ( see, People v. Hicks, 68 N.Y.2d 234; People v. Bedoya, supra). Once the defendant was identified as one of the perpetrators of the robbery, the police had probable cause to arrest him ( see, People v. Bigelow, 66 N.Y.2d 417, 423). Accordingly, those branches of the defendant's omnibus motion which were to suppress identification testimony and physical evidence were properly denied.
The trial court properly refused to submit assault in the third degree (Penal Law § 120.00) as a lesser included offense of assault in the second degree (Penal Law § 120.05). The relevant count in the indictment alleged that the defendant caused physical injury to the victim by means of a dangerous instrument, and the evidence of physical injury consisted of the victim's testimony that the defendant and his accomplices stabbed him in his feet with a knife while he was bound and gagged. There was no reasonable view of the evidence which would support a finding that the physical injuries were inflicted with anything other than a knife ( see generally, People v. Glover, 57 N.Y.2d 61, 63-64).
The imposed sentence was not excessive ( see, People v. Suitte, 90 A.D.2d 80).
The defendant's remaining contentions are either unpreserved for appellate review or without merit. O'Brien, J.P., Sullivan, Copertino and Joy, JJ., concur.