Opinion
October 31, 1991
Appeal from the Supreme Court, Bronx County (Bonnie Wittner, J.).
Defendant and a co-defendant were convicted for a brutal murder, connected with an apartment burglary, during which the victim was handcuffed, repeatedly stabbed, and thrown out of a window. Three eyewitnesses testified for the People. Defendant and co-defendant were apprehended by responding police as they attempted to flee down a fire escape. Both perpetrators were positively identified in separate lineups.
We find no infirmity in the hearing court's denial of defendant's motion to suppress identification evidence. The inadvertent viewing by one witness of defendant in a holding cell, prior to the lineup, did not arise from improper police procedure (People v. Goodman, 167 A.D.2d 352, lv denied 77 N.Y.2d 878). Another witness' initial confusion over defendant's seat number, in the lineup, and her miscommunication in Spanish concerning that seat number, while relevant to the weight to be accorded to the evidence, is not sufficient to render the police procedures improper (see, People v. Jones, 154 A.D.2d 396). In any event, the hearing court properly found an independent source for the in-court identifications (see, People v. Smalls, 112 A.D.2d 173).
Defendant has failed to preserve as a matter of law any claim with respect to the prosecutor's summation (People v. Tardbania, 72 N.Y.2d 852). We decline to review in the interest of justice. If we were to review, we would find the existence of no reversible error.
Defendant's trial motion for a severance, which was not made until the close of co-defendant's direct testimony, was untimely (CPL 200.40; 255.20 [1], [3]; People v. James, 116 A.D.2d 663). If we were to review, we would not find the defenses to be so inconsistent as to warrant a severance (see generally, People v. Mahboubian, 74 N.Y.2d 174) and we would defer to the discretion of the trial court (People v. Cruz, 66 N.Y.2d 61, revd 481 U.S. 186).
Defendant's objection to the court's identification charge is unpreserved for review as a matter of law (see, CPL 470.05; People v. Aponte, 166 A.D.2d 344, lv denied 77 N.Y.2d 957). We decline to review in the interest of justice. If we were to review, we would conclude that the charge as a whole conveyed the appropriate principles of law (People v. Whalen, 59 N.Y.2d 273).
Defendant's challenge to the trial court's denial of his application for a missing witness charge, which was not made until the close of defendant's case, is not preserved for review as a matter of law (People v. Gonzalez, 68 N.Y.2d 424). In any event, defendant failed to demonstrate that the transient witness (People v. Goddard, 150 A.D.2d 794) was within the People's control, and would offer non-cumulative testimony (People v Gonzalez, supra). Nor has defendant preserved his challenge to the trial court's denial of defendant's untimely request for a charge on duress (People v. Irby, 61 A.D.2d 386, mod 47 N.Y.2d 894). In any event, the co-defendant's testimony, which sought to establish only an explanation for his and the defendant's presence in the apartment, and his blood soaked clothing, was not sufficient to require a charge on duress in view of the eyewitness testimony. Being pushed into an apartment is not tantamount to being forced to participate in a homicide. As such, no evidence was elicited which would have established the elements of duress (Penal Law § 40.00).
Nor has defendant preserved his challenge to the trial court's discretionary control over cross-examination of one of the witnesses (CPL 470.05; see, People v. George, 67 N.Y.2d 817). If we were to review, we would find no abuse in the trial court's exercise of discretion (see, People v. Schwartzman, 24 N.Y.2d 241, mot to amend remittitur granted 24 N.Y.2d 914, cert denied 396 U.S. 846).
Finally, we cannot conclude that the sentencing court abused its discretion (People v. Farrar, 52 N.Y.2d 302). We have considered defendant's remaining contentions and find them to be meritless.
Concur — Sullivan, J.P., Milonas, Kupferman, Asch and Kassal, JJ.