Opinion
Argued April 26, 2001.
May 21, 2001.
Appeals by the defendant from (1) a judgment of the Supreme Court, Kings County (Tomei, J.), rendered February 23, 1998, convicting him of robbery in the first degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence, and (2) a resentence of the same court, rendered November 16, 1998. The appeals bring up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress identification testimony.
Daniel L. Greenberg, New York, N.Y. (Kevin Casey of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Michael Gore of counsel), for respondent.
Before: WILLIAM D. FRIEDMANN, J.P., GLORIA GOLDSTEIN, SANDRA J. FEUERSTEIN and STEPHEN G. CRANE, JJ.
ORDERED that the judgment and the resentence are affirmed.
The hearing court correctly concluded that the lineup was not unduly suggestive (see, People v. Chipp, 75 N.Y.2d 327). Furthermore, contrary to the defendant's contention, the hearing court properly denied his request to call the complainant as a witness at the hearing (see, People v. Chipp, supra, at 337-38).
The defendant's contention that the evidence was legally insufficient to establish his identity beyond a reasonable doubt is unpreserved for appellate review (see, People v. Gray, 86 N.Y.2d 10; CPL 470.05; People v. Leschenko, 278 A.D.2d 432). In any event, 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 beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15).
The sentence imposed was not excessive (see, People v. Suitte, 90 A.D.2d 80).
FRIEDMANN, J.P., GOLDSTEIN, FEUERSTEIN and CRANE, JJ., concur.