PEOPLE v. ABREW (2000)

OPINION OF THE COURT

The order of the Appellate Division should be affirmed.

 The trial court did not abuse its discretion in denying defendant's request to call the complainant to testify at the Wade hearing (see, People v. Taylor, 80 N.Y.2d 1, 15, 586 N.Y.S.2d 545, 598 N.E.2d 693).   The hearing evidence revealed no substantial constitutional question as to the suggestiveness of the lineup that would necessitate the complainant's testimony (see, People v. Chipp, 75 N.Y.2d 327, 337-338, 553 N.Y.S.2d 72, 552 N.E.2d 608, cert. denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70).   Defendant argues that, prior to viewing the lineup, the complainant may have seen a “wanted” poster containing a sketch of the perpetrator created by the complainant and a police artist.   The poster was displayed in a prominent location in the station house.   He contends that if the complainant saw the poster, his lineup identification of defendant may have been rendered unduly suggestive.   Defendant, however, failed to lay a foundation for this claim.   He did not question the police witness at the hearing about the poster's location at the station house, or inquire whether the complainant was in proximity to it prior to the lineup.   Further, defendant presented no evidence to support his theory that viewing the sketch could have tainted the lineup identification, where the sketch was based solely on the complainant's own recollections of the perpetrator.

 Defendant points to the complainant's trial testimony as evidence that he may have seen the wanted poster.   However, defendant may not rely on trial testimony to support his challenge to the court's ruling at the Wade hearing (see, People v. Dodt, 61 N.Y.2d 408, 417, 474 N.Y.S.2d 441, 462 N.E.2d 1159).   Nor did he move to reopen the Wade hearing following the complainant's trial testimony.

 Defendant's conviction for assault in the first degree (Penal Law § 120.10[4] ) was not an inclusory concurrent count of his conviction for robbery in the first degree (Penal Law § 160.15[1] ).^*  The assault charge required the infliction of serious physical injury “in furtherance of” the underlying felony  here, the robbery)-an element not required by the robbery charge.   Thus, the assault was not a “lesser offense[ ] included within the greater” (CPL 300.30[4] ).

Defendant's remaining contentions are without merit.

Order affirmed in a memorandum.

FOOTNOTES

FOOTNOTE.   At the time of the offense, robbery in the first degree was a class B felony, and assault in the first degree was a class C felony. Thus, the assault was an offense of lower classification, one of the requirements for an inclusory concurrent count (see, CPL 300.30[4] ).   Effective November 1, 1996, first-degree assault was reclassified as a class B felony (L. 1996, ch. 646, § 2).

MEMORANDUM.

Chief Judge KAYE and Judges BELLACOSA, SMITH, LEVINE, CIPARICK, WESLEY and ROSENBLATT concur.