Opinion
January 23, 1990
Appeal from the Supreme Court, New York County (Stephen G. Crane, J.).
The hearing court's denial of defendant's motion to suppress the several victims' in-court identifications of him was proper. There was nothing impermissibly suggestive in their street showup identifications. The defendant's claim that the police showing of him to one victim waiting near the scene of the crime was improper is totally conclusory. His shirtless attire was hardly suggestive on a summer night. Also, the identification took place within 15 minutes of the crime, and the lack of a shirt was irrelevant as the victim recognized defendant's face (see, People v. Riley, 70 N.Y.2d 523, 529). The street showup for the other victim, in a separate robbery, was a spontaneous event and not arranged by the police (People v. Acevedo, 102 A.D.2d 336, 339-340 [1st Dept 1984]). Both identifications were immediate and without police prompting. Further, the subsequent identifications at the police station were only confirmatory and are acceptable in the circumstances (People v. Perez, 139 A.D.2d 460 [1st Dept 1988]).
The defendant's receipt of Rosario material at the trial, while perhaps belated, does not require reversal (People v Rosario, 9 N.Y.2d 286). He received them in time for use at the trial, which he did. There was no substantial prejudice, and any error can be considered harmless (People v. Martinez, 71 N.Y.2d 937, 940).
Finally, defendant complains of the trial court's failure to sever the two robberies tried in the joint trial. However, he never moved for a severance. Thus, this point was waived for appellate review, as a matter of law (CPL 470.05). In any event, severance is a matter committed to the court's discretion (CPL 200.20). We perceive no abuse of it here.
Concur — Kupferman, J.P., Ross, Milonas, Rosenberger and Ellerin, JJ.