Opinion
February 26, 1998
Appeal from the Supreme Court, New York County (Felice Shea, J.).
Defendant's motion to suppress identification testimony was properly denied. The fact that defendant was wearing handcuffs during this prompt on-the-scene showup did not make the procedure unduly suggestive ( People v. Davis, 232 A.D.2d 154, 155, lv denied 89 N.Y.2d 941). Although the police had the recovered property with them due to the fast pace of the events, they did not make any suggestive use of the recovered property ( see, People v. Brown, 235 A.D.2d 302, lv denied 89 N.Y.2d 1032).
The verdict was not against the weight of the evidence ( see, People v. Bleakley, 69 N.Y.2d 490, 495). In addition to the reliable identification testimony, the evidence established that defendant was found on the roof of the victims' apartment building in possession of their property moments after the burglary.
Finally, defendant's argument that he was not properly adjudicated a persistent violent felony offender is unpreserved ( see, People v. Lopez, 192 A.D.2d 451, lv denied 82 N.Y.2d 722), and we decline to review it in the interest of justice. Were we to review this claim, we would find that defendant acknowledged the accuracy of the People's predicate violent felony statement, and that he was sentenced in accordance therewith. The fact that the court called plaintiff a "predicate felon" instead of a "persistent violent felony offender" is of no moment ( see, People v. Watson, 199 A.D.2d 184, lv denied 83 N.Y.2d 859; People v. Williams, 152 A.D.2d 861). We have considered defendant's other arguments and find them to be without merit.
Concur — Milonas, J. P., Williams, Mazzarelli and Andrias, JJ.