Opinion
March 1, 1994
Appeal from the Supreme Court, New York County, Mary McGowan Davis, J., Franklin R. Weissberg, J.
Complainant, one week after having been robbed, saw defendant, told co-workers of his identification of defendant, who he espied on the street. One co-worker dialed 911 and the other followed defendant. Shortly after, defendant was arrested and the complainant identified him, while handcuffed in police custody, as the robber.
Defendant's contention that the hearing court erred in not granting his motion to suppress the showup identification, since, inter alia, it took place a week after the crime, and in an impermissibly suggestive manner, is without merit. Since complainant had independently recognized defendant approximately 20 minutes before as the robber, the showup was merely confirmatory (People v. Walker, 127 A.D.2d 868, lv denied 70 N.Y.2d 718; see also, People v. Soto, 198 A.D.2d 38, 39).
However, in view of the fact that Criminal Term misstated the minimum permissible sentence (see, Penal Law § 70.08) which defendant could receive as a persistent violent felony offender, and the People concede that error, we vacate the sentence and remand for resentencing.
Concur — Murphy, P.J., Sullivan, Carro, Wallach and Tom, JJ.