PEOPLE v. JOHNSON (1997)

Judgment, Supreme Court, New York County (Frederic Berman, J.), rendered September 8, 1995, convicting defendant, after a jury trial, of robbery in the second degree, and sentencing him, as a second violent felony offender, to a term of 7 to 14 years, unanimously affirmed.

 Defendant's motion to suppress was properly denied.   The officers, in responding to a radio report received from an identified complainant, properly approached and requested information from defendant and his co-defendant since they were observed near the location where a robbery had occurred a short time before and were the only individuals who closely matched the descriptions contained in the report (see, People v. Perez, 224 A.D.2d 313, 638 N.Y.S.2d 441, affd. 88 N.Y.2d 1059, 651 N.Y.S.2d 403, 674 N.E.2d 333).   Although the clothing worn by defendants did not precisely match the description of the clothing worn by the perpetrators as described in the radio report, the differences were minor and did not detract from the specificity of the radioed description and the congruity between the officers' observations and that description (see, People v. Wiley, 209 A.D.2d 361, 618 N.Y.S.2d 798, lv. denied 85 N.Y.2d 944, 627 N.Y.S.2d 1007, 651 N.E.2d 932).   This observation of defendants, together with their nervous behavior, change of direction upon seeing the patrol car and suspicious answers to the officers' questions, gave the officers reasonable suspicion that defendants had committed the robbery and, therefore, justified their on-the-scene detention in order to conduct a showup (People v. Hicks, 68 N.Y.2d 234, 508 N.Y.S.2d 163, 500 N.E.2d 861).   After the complainant identified defendant as one of the individuals who had robbed him, the officers had probable cause to arrest him and to conduct a search incident to the arrest (People v. DeBour, 40 N.Y.2d 210, 386 N.Y.S.2d 375, 352 N.E.2d 562).

 Since defendant failed to raise his contention that the admission of the co-defendant's plea allocution violated his right of confrontation, the issue has not been preserved for appellate review (People v. Qualls, 55 N.Y.2d 733, 447 N.Y.S.2d 149, 431 N.E.2d 634), and we decline to review it in the interest of justice.   In any event, this contention, as well as defendant's preserved argument that the introduction of such evidence improperly implicated him in the crime, are without merit since the allocution, which possessed ample indicia of reliability (see, Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638), was properly admitted as a declaration against penal interest to establish an element of the crime charged against defendant (People v. Thomas, 68 N.Y.2d 194, 507 N.Y.S.2d 973, 500 N.E.2d 293, cert. denied 480 U.S. 948, 107 S.Ct. 1609, 94 L.Ed.2d 794).   Moreover, the court's redaction of the allocution to eliminate any reference to this defendant, and its repeated instructions to the jurors that they could not consider the allocution as evidence of his identity, served to minimize any prejudice (id.;  People v. Adams, 225 A.D.2d 506, 640 N.Y.S.2d 37, lv. denied 88 N.Y.2d 932, 647 N.Y.S.2d 166, 670 N.E.2d 450).   Although the prosecutor's comments during summation with respect to the plea allocution were improper, the error was harmless in light of the overwhelming evidence of defendant's guilt and the instructions provided by the trial court, which, as noted, directed the jurors' attention to the proper manner in which to consider such evidence (People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787;  see also, People v. Maher, 89 N.Y.2d 456, 462, 654 N.Y.S.2d 1004, 677 N.E.2d 728).

MEMORANDUM DECISION.