Opinion
March 6, 1989
Appeal from the County Court, Nassau County (Belfi, J.).
Ordered that the judgment is modified, on the law, by vacating the sentence imposed; as so modified, the judgment is affirmed, and the matter is remitted to the County Court, Nassau County, for a hearing pursuant to CPL 400.21 and for resentencing.
We find no merit to the defendant's contention that he was entitled to suppression of the victim's showup identification of him. The identification took place about 300 feet from the gas station where the robbery occurred and within 10 minutes thereof (see, People v. Molina, 140 A.D.2d 377; People v. Redd, 137 A.D.2d 770).
Viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15).
The defendant's challenge to his adjudication as a second felony offender is meritorious. The defendant was entitled to have a hearing with regard to his claim that his prior Connecticut conviction for escape had been obtained unconstitutionally for lack of effective assistance of trial counsel, who had jointly represented the defendant and his codefendants (see, People v. Ordine, 130 A.D.2d 518; People v Wright, 119 A.D.2d 973, lv denied 67 N.Y.2d 1058). If the court finds that the defendant's constitutional rights were violated, the conviction cannot be used as the predicate for a second felony offender adjudication.
We have examined the defendant's other contentions and find them to be without merit. Mangano, J.P., Lawrence, Rubin and Kooper, JJ., concur.