Opinion
June 10, 1998
Appeal from Judgment of Onondaga County Court, Fahey, J. — Attempted Assault, 2nd Degree.
Present — Pine, J. P., Lawton, Wisner, Callahan and Fallon, JJ.
Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him after a bench trial of attempted assault in the second degree (Penal Law § 110.00, 120.05 Penal [2]) and aggravated harassment in the second degree (Penal Law § 240.30). County Court properly denied defendant's motion to suppress the identification testimony of an eyewitness and statements made by defendant in the presence of police officers. The initial detention was brief and defendant was told that it was for a showup. The officers handcuffed defendant and put him in a police vehicle only after defendant became belligerent and pushed and swore at the officers. Under the circumstances, we conclude that the officers' conduct did not amount to a de facto arrest (see, People v. Turner, 216 A.D.2d 931, lv denied 86 N.Y.2d 804; see also, People v. Norman, 199 A.D.2d 5, lv denied 83 N.Y.2d 808).
Additionally, we conclude that the showup procedure was not unduly suggestive or otherwise improper (see, People v. Presley, 231 A.D.2d 847, lv denied 89 N.Y.2d 928; see also, People v. Duuvon, 77 N.Y.2d 541). In any event, the People established that the witness had an independent basis for his in-court identification of defendant (see, People v. Jordan, 178 A.D.2d 1009, 1010, lv denied 79 N.Y.2d 920). Defendant's conviction is supported by legally sufficient evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495).
The court erred in allowing evidence of prior uncharged crimes and bad acts of defendant (see generally, People v. Ventimiglia, 52 N.Y.2d 350, 359-360). The error, however, is harmless. The evidence of defendant's guilt is overwhelming, and there is no significant probability that the error contributed to defendant's conviction (see, People v. Crimmins, 36 N.Y.2d 230, 242).
By failing to object when the verdict was rendered, defendant failed to preserve for our review his contentions that the court erred in failing to inform counsel that it would consider the lesser included offense of attempted assault in the second degree (see, People v. Jackson, 166 A.D.2d 356, lv denied 77 N.Y.2d 839) and in failing to permit defense counsel to deliver a summation (see, CPL 320.20). We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see, CPL 450.15 [a]).