Opinion
April 26, 1993
Appeal from the Supreme Court, Kings County (Douglass, J.).
Ordered that the judgment is modified, on the law, by reducing the minimum term of the sentence imposed upon the defendant's conviction under count two of the indictment, charging him with robbery in the first degree, from 10 to 6 2/3 years; as so modified, the judgment is affirmed.
Within one half hour after receiving a radio report of a robbery at a clothing store and a description of the perpetrators and their vehicle, including the license plate number, the police stopped the defendant's vehicle four blocks from the scene of the crime. The proprietor of the store was brought to the location and identified the defendant's accomplice, but he could not positively identify the defendant. Shortly thereafter, the defendant and the accomplice were transported back to the store, whereupon a customer who witnessed the incident positively identified both of them as the perpetrators.
Contrary to the defendant's contention on appeal, the court did not err in denying suppression of the showup identification by the customer. "While showup procedures are generally disfavored, they are permissible where, as in this case, they are employed in close spatial and temporal proximity to the commission of the crime for the purpose of securing a prompt and reliable identification" (People v Adams, 163 A.D.2d 318, 319; see also, People v Duuvon, 77 N.Y.2d 541; People v Holder, 178 A.D.2d 436; People v West, 128 A.D.2d 570; People v Nimmons, 123 A.D.2d 648; People v Digiosaffatte, 63 A.D.2d 703). Moreover, the record contains no evidence of any police conduct that rendered the showup in question unduly suggestive in any manner (see, People v Jackson, 180 A.D.2d 756; People v Adams, 163 A.D.2d 318; People v Drake, 141 A.D.2d 560; People v Papile, 113 A.D.2d 776).
In addition, we find that the court properly rejected the defendant's request for new counsel as merely a dilatory tactic, since it was made after most of the pretrial hearing had been held and immediately before the jury was empanelled (see, People v Jones, 182 A.D.2d 708; People v Green, 181 A.D.2d 693; People v Maldonado, 178 A.D.2d 554; People v Gloster, 175 A.D.2d 258; People v Moore, 172 A.D.2d 854; People v Branch, 155 A.D.2d 473).
Upon the defendant's conviction for robbery in the first degree under count two of the indictment (Penal Law § 160.15), he was sentenced to an indeterminate term of 10 to 20 years imprisonment. As conceded by the People, the court erred in imposing a minimum of one-half of the maximum term, inasmuch as the crime of robbery in the first degree, as defined in Penal Law § 160.15 (3), is not an "armed felony" (see, CPL 1.20). Neither the possession nor display of a gun is a statutory element of that crime (see, People v Seifert, 173 A.D.2d 655; People v Ulses, 132 A.D.2d 584; People v Thorpe, 129 A.D.2d 822). Accordingly, the minimum term of imprisonment on this count should have been one-third the maximum imposed (see, Penal Law § 70.02).
Finally, the defendant's contentions that the sentence on the whole was unduly excessive and constituted punishment for proceeding to trial are without merit (see, People v Suitte, 90 A.D.2d 80; see also, People v Pena, 50 N.Y.2d 400, 412, cert denied 449 U.S. 1087; People v Canute, 190 A.D.2d 745; People v Sherrod, 181 A.D.2d 700; People v Nelson, 179 A.D.2d 784, 786; People v Brown, 157 A.D.2d 790, 792; People v Cunningham, 153 A.D.2d 700; cf., People v Patterson, 106 A.D.2d 520, 521). Sullivan, J.P., Balletta, Lawrence and Eiber, JJ., concur.