Opinion
2621 3433/11
01-03-2017
The People of the State of New York, Respondent, v. Anthony Rivera, Defendant-Appellant.
Cardozo Appeals Clinic, New York (Bobbi Sternheim of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Christine Didomenico of counsel), for respondent.
Saxe, J.P., Moskowitz, Gische, Kahn, Gesmer, JJ.
Cardozo Appeals Clinic, New York (Bobbi Sternheim of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Christine Didomenico of counsel), for respondent.
Judgment, Supreme Court, New York County (Edward J. McLaughlin, J. at hearing; Richard D. Carruthers, J. at jury trial; Ronald A. Zweibel, J. at sentencing), rendered January 29, 2013, convicting defendant of three counts of robbery in the second degree, and sentencing him, as a second violent felony offender, to concurrent terms of 12 years, followed by 5 years of post release supervision, unanimously affirmed.
Since defendant's suppression motion was expressly limited to a Fourth Amendment claim, his argument that his identification should have been suppressed because of an allegedly suggestive lineup is unpreserved and waived, and we decline to review it in the interest of justice. As an alternative holding, we also reject it on the merits. The hearing record does not support defendant's claim of suggestiveness (see generally People v Chipp , 75 NY2d 327, 336 [1990], cert denied 498 US 833 [1990]), which is largely based on trial, rather than hearing, testimony (see People v Abrew , 95 NY2d 806, 808 [2000]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 3, 2017
CLERK