Opinion
KA 04-02980.
September 29, 2006.
Appeal from a judgment of the Erie County Court (Timothy J. Drury, J.), rendered December 8, 2004. The judgment convicted defendant, upon a jury verdict, of attempted robbery in the second degree.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (STEVEN MEYER OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Present — Hurlbutt, J.P., Scudder, Gorski and Green, JJ.
It is hereby ordered that said appeal from the judgment insofar as it imposed sentence be and the same hereby is unanimously dismissed ( see People v Haywood, 203 AD2d 966, lv denied 83 NY2d 967) and the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial of attempted robbery in the second degree (Penal Law §§ 110.00, 160.10 [a]). "By failing to object to County Court's ultimate Sandoval ruling, defendant failed to preserve for our review his contention that the ruling constitutes an abuse of discretion" ( People v Trammell, 28 AD3d 1219, 1219; see People v O'Connor, 19 AD3d 1154, 1155, lv denied 5 NY3d 831). In any event, defendant's contention lacks merit ( see People v Tirado, 19 AD3d 712, 713 , lv denied 5 NY3d 810; People v Jones, 220 AD2d 251, 252, lv denied 88 NY2d 880; People v Hunter, 180 AD2d 752; see also People v Calvert, 266 AD2d 226, lv denied 94 NY2d 877). Defendant also failed to preserve for our review his contention that the verdict is repugnant ( see People v Alfaro, 66 NY2d 985, 987), and we decline to exercise our power to address that contention as a matter of discretion in the interest of justice ( see CPL 470.15 [a]). Even assuming, arguendo, that the showup identification of defendant by the victim was unduly suggestive, we conclude that the suppression court properly determined that the victim had a "source independent of the pretrial identification procedure . . . for [his] in-court identification" of defendant ( People v Chipp, 75 NY2d 327, 335, cert denied 498 US 833; see People v Robinson, 8 AD3d 1028, 1030, affd 5 NY3d 738; People v Jones, 300 AD2d 1057, 1058, lv denied 99 NY2d 629; see generally People v Corchado, 299 AD2d 843, 844, lv denied 99 NY2d 581). Finally, the verdict is not against the weight of the evidence ( see generally People v Bleakley, 69 NY2d 490, 495).