Opinion
Submitted June 25, 1999
October 21, 1999
Jonathan Leinheardt, New York, N.Y., for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Roseann B. MacKechnie, Ann Bordley, and Thomas S. Burka of counsel), for respondent.
SONDRA MILLER, J.P., THOMAS R. SULLIVAN, MYRIAM J. ALTMAN, LEO F. McGINITY, JJ.
DECISION ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Friedman, J.), rendered May 23, 1995, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress identification testimony.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the hearing court properly found that the lineup in which he participated was not impermissibly suggestive (see, People v. Lopez, 209 A.D.2d 442 ;People v. Baptiste, 201 A.D.2d 659 ). Thus, the defendant's motion to suppress identification testimony was properly denied. In addition, the statement made by the victim a minute or two after he was shot, naming the defendant as the shooter, was properly admitted into evidence as an excited utterance (see, People v. Brown, 70 N.Y.2d 513 ).
The defendant's contention that the evidence was legally insufficient to support his conviction is unpreserved for appellate review. In any event, viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620 ), we find the evidence was legally sufficient to establish his guilt beyond a reasonable doubt (see, People v. Register, 60 N.Y.2d 270, 274-275, cert denied 466 U.S. 953). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15[5]).
S. MILLER, J.P., SULLIVAN, ALTMAN, and McGINITY, JJ., concur.