Opinion
Argued March 26, 2001.
April 16, 2001.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Bruno, J.), rendered December 15, 1997, convicting him of rape in the first degree, robbery in the first degree, and sexual abuse in the first degree (three counts), upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Hall, J.), of that branch of the defendant's omnibus motion which was to suppress identification testimony.
M. Sue Wycoff, New York, N.Y. (Bryan Lonegan and Kevin Casey of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Michael Gore, and Susan D. Settenbrino of counsel), for respondent.
Before: DAVID S. RITTER, J.P., GABRIEL M. KRAUSMAN, SONDRA MILLER, SANDRA J. FEUERSTEIN, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
The hearing court properly denied that branch of the defendant's omnibus motion which was to suppress the complainant's identification of him. The complainant had spontaneously identified the defendant as her assailant upon seeing him at her place of work. Therefore, her viewing of the defendant at the police station was merely confirmatory (see, People v. Griffin, 161 A.D.2d 799, 801; People v. Knight, 156 A.D.2d 588, 589; People v. Kelley, 144 A.D.2d 386).
The defendant contends that the second count of the indictment, containing one of the counts of sexual abuse in the first degree, should have been dismissed as a non-inclusory concurrent count of rape in the first degree. His contention is not preserved for appellate review, as he failed to move to dismiss the second count of the indictment at trial (see, People v. Rodriguez, 126 A.D.2d 681, 682). In any event, it is without merit (see, People v. Reed, 222 A.D.2d 459; People v. Peterson, 68 A.D.2d 938).
RITTER, J.P., KRAUSMAN, S. MILLER and FEUERSTEIN, JJ., concur.