PEOPLE v. EVANS (1999)

Judgment, Supreme Court, New York County (Ira Beal, J.), rendered December 23, 1996, convicting defendant, after a jury trial, of attempted robbery in the first degree, and sentencing him, as a second violent felony offender, to a term of 12 years, unanimously affirmed.

 The court properly denied suppression of defendant's station house statement, as well as preclusion for allegedly deficient CPL 710.30(1)(a) notice.   The hearing evidence establishes that the statement was spontaneous and not in response to any form of police questioning (see, People v. Huffman, 61 N.Y.2d 795, 473 N.Y.S.2d 945, 462 N.E.2d 122).   Since the totality of the record establishes that defendant moved for both preclusion and suppression of the statement, the substance of which was set forth in the statement notice, and since defendant received a full hearing on the constitutionality of the statement, any deficiency in the statement notice with respect to time and place was irrelevant (People v. Kirkland, 89 N.Y.2d 903, 653 N.Y.S.2d 256, 675 N.E.2d 1208;  see also, People v. Perry, 203 A.D.2d 131, 611 N.Y.S.2d 3, lv. denied 83 N.Y.2d 970, 616 N.Y.S.2d 23, 639 N.E.2d 763).

 The testimony of the arresting officer, who witnessed the showup identification procedure, satisfied the People's initial burden of going forward to establish the reasonableness of the police conduct in arranging the showup, which was conducted in close geographic and temporal proximity to the crime (People v. Chipp, 75 N.Y.2d 327, 335, 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).   Further, the officer's testimony that the complainant immediately pointed to defendant and shouted out an identification when she arrived at the showup scene, and that nothing was said to the complainant at the scene prior to the identification, was sufficient to satisfy the People's “burden of producing some evidence relating to the showup itself, in order to demonstrate that the procedure was not unduly suggestive” (People v. Ortiz, 90 N.Y.2d 533, 537, 664 N.Y.S.2d 243, 686 N.E.2d 1337).   Defendant's claim that perhaps a police officer who transported the complainant to the showup scene, within one minute of defendant's apprehension, might have said something suggestive to the complainant prior to her identification of defendant is purely speculative and would not require the People to present further testimony (see, People v. Morrison, 244 A.D.2d 168, 663 N.Y.S.2d 841, lv. denied 91 N.Y.2d 895, 669 N.Y.S.2d 9, 691 N.E.2d 1035).

We perceive no abuse of discretion in sentencing.

Defendant's additional arguments are unpreserved and we decline to review them in the interest of justice.

MEMORANDUM DECISION.