Opinion
June 2, 1989
Appeal from the Erie County Court, Forma, J.
Present — Callahan, J.P., Denman, Boomer, Balio and Lawton, JJ.
Judgment unanimously affirmed. Memorandum: On appeal from a judgment of conviction of third degree robbery, defendant contends that identification testimony was improperly admitted because it was the result of an unduly suggestive showup. Since defense counsel failed to challenge the showup in her omnibus motion and specifically agreed that there was no Wade issue, the issue has not been preserved for appellate review (CPL 470.05) and we decline to reach it in the interest of justice. In any event, the showup does not appear to be suggestive inasmuch as the victim called the attention of police to defendant, not the reverse. The verdict is supported by the evidence and is not contrary to the weight of the evidence. The victim testified unequivocally that defendant forcibly stole his bicycle by grabbing it, punching him in the neck and jaw, and knocking him to the ground. In opposition to that testimony was the testimony of defendant, her sister and her friend, all of whose testimony was not only contradictory to each other but inconsistent with prior statements to the police. Thus, under the standards for both sufficiency and weight (see, People v Bleakley, 69 N.Y.2d 490, 495), the evidence amply supports the verdict.