Opinion
December 26, 1991
Appeal from the Erie County Court, Drury, J.
Present — Doerr, J.P., Boomer, Green, Pine and Balio, JJ.
Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment entered upon a jury verdict convicting him of second degree robbery for forcibly stealing property and then escaping in a car driven by the co-defendant. Defendant argues that the police lacked probable cause to stop the car, that the complainant's in-court identification was tainted by an unduly suggestive showup and that his sentence is harsh and excessive. Each contention lacks merit.
The police stopped the car after hearing a radio transmission. The police said the description of the car in which defendant was a passenger matched the description that complainant gave to a police dispatcher immediately following the robbery. Since defendant's challenge to the existence of probable cause for his arrest was directed only to the sufficiency of the description rather than to its reliability, the presumption of probable cause based on the radio transmission remained and the People were not required to present the sending officer or account for the underlying basis of the information (see, People v Jenkins, 47 N.Y.2d 722, 724; People v Lypka, 36 N.Y.2d 210, 213; People v Bowdoin, 89 A.D.2d 986, 987). The complainant testified at the suppression hearing that he gave the police a detailed description of the car, including the license plate number. This was sufficient to justify a stop of the vehicle by the police and the subsequent arrest of the occupants (see, People v Lewis, 165 A.D.2d 901, 903-904, lv denied 76 N.Y.2d 1022; People v Lopez, 160 A.D.2d 167, 168; People v Jenkins, 133 A.D.2d 348, lv denied 70 N.Y.2d 800).
The showup was permissible and not unduly suggestive. It occurred promptly after the crime near the crime scene and the complainant positively and unequivocally identified defendant based on his distinctive clothing and appearance (see, People v Duuvon, 77 N.Y.2d 541, 544-545; People v Brnja, 50 N.Y.2d 366, 372; People v Plantz, 161 A.D.2d 1115, 1116, lv denied 76 N.Y.2d 863). The fact that defendant was in custody when identified does not render the showup unduly suggestive (see, People v Duuvon, supra, at 545; People v Jones, 149 A.D.2d 970, lv denied 74 N.Y.2d 742; People v Johnson, 102 A.D.2d 616, 627, lv denied 63 N.Y.2d 776). Moreover, even if the showup was improper, the hearing court properly found that the complainant had an independent basis to support his in-court identification at trial based on his face-to-face daylight confrontation with defendant at the crime scene (see, People v Sorenson, 112 A.D.2d 1016, 1017, lv denied 66 N.Y.2d 767; People v Washington, 111 A.D.2d 418, lv denied 66 N.Y.2d 768).
Defendant's sentence was considerably less than the maximum and not excessive.