Opinion
November 18, 1992
Appeal from the Oneida County Court, Merrell, J.
Present — Denman, P.J., Pine, Lawton, Boehm and Davis, JJ.
Judgment unanimously modified on the law and as modified affirmed and matter remitted to Oneida County Court for resentencing in accordance with the following Memorandum: Defendant appeals from a judgment convicting him of robbery in the second degree. We agree with defendant that the evidence was legally insufficient to support a finding that the victim suffered either substantial pain or an impairment of physical condition (Penal Law § 10.00) in the absence of any showing of medical treatment, hospitalization, or physical impairment (see, People v Joseph, 124 A.D.2d 750; People v Jones, 118 A.D.2d 658). We reduce defendant's conviction to the crime of robbery in the third degree, pursuant to the provisions of CPL 470.15 (2) (a), and remit the matter for resentencing in accordance with CPL 470.20 (4).
We reject, however, defendant's other contentions on appeal. The showup identification procedure was not unduly suggestive; defendant was apprehended in proximity to the time and place of the crime and was viewed immediately by the witness (see, People v Riley, 70 N.Y.2d 523; People v Love, 57 N.Y.2d 1023; People v Minter, 186 A.D.2d 1035). The fact that defendant was handcuffed at the time of the identification does not render the procedure unduly suggestive under the circumstances (see, People v Burns, 133 A.D.2d 642, lv denied 70 N.Y.2d 873).
Defendant's assertion that he was arrested without probable cause has not been preserved for review (see, CPL 470.05; People v Worsech, 186 A.D.2d 1004; People v O'Neil, 152 A.D.2d 966, lv denied 74 N.Y.2d 816). Similarly, defendant's contention that the suppression court failed to comply with CPL 710.60 (6) is raised for the first time on appeal and we decline to review the issue in the interest of justice. In any event, defendant had a full and fair hearing on the issue of the victim's identification and is not entitled to suppression of the identification testimony (see, People v Lewis, 172 A.D.2d 1020).
The court should not have allowed cross-examination of defendant regarding his 1988 convictions for assault. Under the circumstances, however, any error must be deemed harmless. We have reviewed defendant's remaining contentions and find them to be without merit.