Opinion
December 7, 1995
Appeal from the Supreme Court, Bronx County (Elbert Hinkson, J.).
Since the record supports the hearing court's conclusion that the People met their burden of going forward to establish the reasonableness of the police conduct and the lack of any undue suggestiveness in the pretrial identification procedures, and defendant failed to meet his ultimate burden of proving that the procedures were unduly suggestive, there was no need for the People to demonstrate the existence of an independent source ( People v Chipp, 75 N.Y.2d 327, 335, cert denied 498 U.S. 833).
Since defendant failed to raise the present, specific contention as to the sufficiency of the proof against him in support of his motion to dismiss in the trial court, the issue has not been preserved for this Court's review (CPL 470.05; People v Gray, 86 N.Y.2d 10). In any event, viewing the evidence in a light most favorable to the People ( People v Contes, 60 N.Y.2d 620, 621), the proof was legally sufficient to establish his guilt of the crimes of which he was convicted. Nor was the verdict against the weight of the evidence ( People v Bleakley, 69 N.Y.2d 490).
As we noted in affirming the conviction of the codefendant ( People v Wheatley, 211 A.D.2d 572, lv denied 85 N.Y.2d 916), it was not an improvident exercise of discretion for the trial court to have restricted cross-examination of the complainant concerning his possible economic motive to lie where such was based on counsel's mere speculation.
We have reviewed defendant's remaining contentions and find them to be without merit. The unpublished Decision and Order of this Court entered herein on October 26, 1995 is hereby recalled and vacated.
Concur — Sullivan, J.P., Rosenberger, Ross, Asch and Nardelli, JJ.