Opinion
December 14, 1992
Appeal from the Supreme Court, Queens County (Calabretta, J.).
Ordered that the judgment is affirmed.
There is no merit to the defendant's contention that the identification testimony implicating him in the sexual assault of the complainant should have been suppressed as the product of an illegal arrest. We note that in his omnibus motion the defendant failed to move for suppression of evidence based upon a claim that he had been arrested without probable cause (see, People v Mezon, 80 N.Y.2d 155). Rather, following a combined Wade-Huntley hearing, in his posthearing memorandum, the defendant advanced and developed the claim for the first time that he had been arrested without probable cause on October 12, 1986, in relation to other charges, and that a photograph taken following that arrest and release led to his identification and arrest on October 14, 1986, in connection with the instant charges. Insofar as this argument was not raised at a time when the People had an evidentiary opportunity to counter the defendant's bald assertions, it is unpreserved for appellate review (CPL 470.05; People v Martin, 50 N.Y.2d 1029; People v Tutt, 38 N.Y.2d 1011). In any event, the record supports the hearing court's determination that there was probable cause for the defendant's arrest on October 12 by Detective Clark, as the defendant was implicated by name, by an alleged accomplice (see, People v Berzups, 49 N.Y.2d 417). This information was related at the Wade-Huntley hearing, without challenge by the defendant, by Detective Matthew Fogarty who arrested the defendant on the instant charges on October 14, after the complainant selected his photograph from an array. Detective Fogarty learned of the defendant's identity and the facts of the prior arrest from Detective Clark, who interrogated the alleged accomplice. Thus, probable cause was properly demonstrated by unchallenged hearsay testimony (cf., People v Gonzalez, 80 N.Y.2d 883) notwithstanding that the officer who received the inculpatory statement did not testify at the suppression hearing (see, People v Rosario, 78 N.Y.2d 583, cert denied ___ US ___, 112 S Ct 1210; People v Petralia, 62 N.Y.2d 47, cert denied 469 U.S. 852; People v Toodles, 184 A.D.2d 674). Accordingly, to the extent that this claim was even properly raised within the context of a Wade hearing (see, People v Pleasant, 54 N.Y.2d 972, 974-977 [Jones, J., concurring]), there is no basis upon which to conclude that the photograph taken of the defendant following his first arrest and release was the fruit of an illegal arrest infecting all subsequent identification procedures derived from that photograph.
Furthermore, at the Wade hearing, it was established that the photographic array from which the defendant's picture was identified was not unduly suggestive (see, People v Eleby, 137 A.D.2d 707; People v Fox, 65 A.D.2d 880), and the lineup did not present a substantial likelihood of misidentification (see, People v Dobbins, 155 A.D.2d 551; People v Gairy, 116 A.D.2d 733).
We have reviewed the defendant's remaining contentions and find them to be without merit. Sullivan, J.P., Rosenblatt, Miller and Ritter, JJ., concur.