Opinion
2000-04548
Submitted September 13, 2002
October 1, 2002
Appeal by the defendant from a judgment of the Supreme Court, Kings County (F. Rivera, J.), rendered May 1, 2000, convicting him of robbery in the first degree (two counts), upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of those branches of the defendant's omnibus motion which were to suppress physical evidence and identification testimony.
Michael A. Sheinberg, Brooklyn, N.Y., for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Adam S. Charnoff of counsel), for respondent.
Before: SONDRA MILLER, J.P., STEPHEN G. CRANE, BARRY A. COZIER, REINALDO E. RIVERA, JJ.
ORDERED that the judgment is affirmed.
The defendant's contention that the police did not have a reasonable suspicion to stop and detain him for a showup identification is unpreserved for appellate review (see CPL 470.05; People v. Gray, 86 N.Y.2d 10). In any event, the defendant partially matched the description of one of the perpetrators furnished by the complainants, and the showup identification was justified by its spatial and temporal proximity to the crime and was not unduly suggestive (see People v. Duuvon, 77 N.Y.2d 541, 544; People v. Herrell, 278 A.D.2d 339, 340).
The manner in which the defendant was stopped and detained did not elevate the encounter to a full-blown arrest (see People v. Allen, 73 N.Y.2d 378, 380; People v. Persaud, 244 A.D.2d 577; People v. Evans, 237 A.D.2d 458). The complainants' prompt identification of the defendant during the showup provided probable cause for his arrest (see People v. Vaughan, 293 A.D.2d 693, lv denied 98 N.Y.2d 682).
The trial court providently exercised its discretion in only giving an adverse inference charge with respect to the People's destruction of certain Rosario material (see People v. Rosario, 9 N.Y.2d 286). The defendant failed to demonstrate that he suffered any prejudice or that the People acted in bad faith (see People v. Martinez, 71 N.Y.2d 937; People v. Jarvis, 249 A.D.2d 417).
The trial court properly submitted the counts of robbery in the first degree to the jury. The evidence failed to establish that the handgun displayed during the commission of the crime was unloaded or incapable of being fired (see People v. Cotarelo, 129 A.D.2d 725; People v. Francis, 126 A.D.2d 740).
The statements made by the codefendant Kenneth Mitchell during his plea allocution were properly admitted at trial as a declaration against penal interest to establish an element of the crime charged (see People v. Brensic, 70 N.Y.2d 9; People v. Thomas, 68 N.Y.2d 194, cert denied sub nom Thomas v. New York, 480 U.S. 948).
S. MILLER, J.P., CRANE, COZIER and RIVERA, JJ., concur.