Opinion
July 6, 1987
Appeal from the County Court, Nassau County (Thorp, J.).
Ordered that the judgment is affirmed.
Viewed in the totality of the circumstances, the showup identification procedure conducted by the police at the scene and in close temporal proximity to the crime was not unduly suggestive or conducive to irreparable mistaken identification. Rather, it was appropriately conducted in the interest of securing a prompt and reliable identification of the defendant as the perpetrator and of minimizing the intrusion upon a possibly innocent person's freedom (see, People v. Love, 57 N.Y.2d 1023, 1024-1025; People v. Rivera, 108 A.D.2d 935; People v Digiosaffatte, 63 A.D.2d 703; cf., People v. Osgood, 89 A.D.2d 76). In any event, we find that the hearing court properly found that an independent basis existed for the in-court identification of the defendant. The five complainants each testified that they had sufficient opportunity to observe the defendant at various points during the commission of the crime and to notice that he was shorter and of stockier build than his accomplice, and had distinguishing facial features. Moreover, three of the complainants stated that they recognized the defendant when he entered the residence because they had observed him walking down the street near the scene of the crime just prior to its commission (see, People v. Rivera, 108 A.D.2d 935, supra).
We also find that the defendant's statements to the police were properly admitted at the trial. The defendant's allegation of impermissible police conduct during the interrogation is erroneously based upon his trial testimony which was not presented to the hearing court (see, People v. King, 121 A.D.2d 471, lv denied 68 N.Y.2d 758). Therefore, we decline to consider the trial testimony on this issue.
Finally, we find no basis to conclude that the defendant's sentence is excessive (see, People v. Brown, 115 A.D.2d 485, 486, lv denied 67 N.Y.2d 760). Thompson, J.P., Bracken, Brown and Eiber, JJ., concur.