Opinion
2001-07231
Submitted September 4, 2003.
October 6, 2003.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Honorof, J.), rendered July 3, 2001, convicting him of grand larceny in the third degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress identification testimony.
Martin Geoffrey Goldberg, Franklin Square, N.Y., for appellant.
Denis Dillon, District Attorney, Mineola, N.Y. (Robert A. Schwartz and Deborah N. Abramson of counsel), for respondent.
Before: ANITA R. FLORIO, J.P., SONDRA MILLER, WILLIAM D. FRIEDMANN, DANIEL F. LUCIANO, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the Supreme Court properly denied that branch of his omnibus motion which was to suppress identification testimony. There was reasonable suspicion to temporarily detain the defendant based on the observations of the witnesses, together with the defendant's subsequent actions and those of his codefendant in turning and fleeing into a nursery school and then onto the street, when he saw Nassau County Police Officers and Hofstra University Security Officers waiting in the nursery school parking lot. His subsequent showup identification by the principal of the nursery school was justified by its spatial and temporal proximity to the scene and was not unduly suggestive ( see People v. Martinez, 80 N.Y.2d 444, 446-448; People v. Safford, 297 A.D.2d 828; People v. Warren, 276 A.D.2d 505). Furthermore, contrary to the defendant's contention, the manner in which he was stopped and temporarily detained did not elevate the encounter into a full-blown arrest ( see People v. Hicks, 68 N.Y.2d 234, 239-242; People v. De Bour, 40 N.Y.2d 210, 223; People v. Moore, 296 A.D.2d 426; People v. Powell, 249 A.D.2d 422).
The Supreme Court providently exercised its discretion in denying the defendant's motion for the assignment of new counsel ( see People v. Sides, 75 N.Y.2d 822, 824; People v. Sawyer, 57 N.Y.2d 12, 18-19, cert denied 459 U.S. 1178; People v. Medina, 44 N.Y.2d 199, 207-208; People v. Garcia, 284 A.D.2d 479).
The defendant's contention that the evidence was legally insufficient to prove his guilt beyond a reasonable doubt is unpreserved for appellate review ( see CPL 470.05). 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 ( see CPL 470.15), we are satisfied that the verdict of guilt was not against the weight of the evidence.
The defendant's remaining contentions are without merit.
FLORIO, J.P., S. MILLER, FRIEDMANN and LUCIANO, JJ., concur.