PEOPLE v. CATES (1997)

Judgment, Supreme Court, Bronx County (David Stadtmauer, J., at Wade hearing;  Joseph Fisch, J., at jury trial and sentencing), rendered April 10, 1995, convicting defendant of two counts of robbery in the third degree, and sentencing him, as a second felony offender, to consecutive terms of 3 to 6 years, and judgment, same court (Steven Barrett, J.), convicting defendant, upon his plea of guilty, of bail jumping in the second degree, and sentencing him, as a second felony offender, to a term of 11/212 to 3 years, to run consecutively to the above sentences, unanimously affirmed.

There was an independent source for the complainants' in-court identification of defendant, based on their ability to observe him for five minutes, in a well-lit area, while he stood about two feet away from them (see, People v. Santos, 202 A.D.2d 258, 259, 608 N.Y.S.2d 645, lv. denied 83 N.Y.2d 1007, 616 N.Y.S.2d 488, 640 N.E.2d 156).   Defendant's claims regarding the line-up identification are without merit.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence.   Factual issues concerning the reliability of the identification testimony were properly presented to the jury (see, People v. Horonzy, 177 A.D.2d 254, 255, 576 N.Y.S.2d 6, affd. 81 N.Y.2d 853, 597 N.Y.S.2d 622, 613 N.E.2d 528;  People v. Quevedo, 156 A.D.2d 265, 548 N.Y.S.2d 655, lv. denied 75 N.Y.2d 870, 553 N.Y.S.2d 302, 552 N.E.2d 881), and we see no reason to disturb its verdict.

Defendant failed to preserve his challenge to the court's instruction regarding identification and we decline to review it in the interest of justice.   Were we to review it, we would find that the court's charge sufficiently apprised the jury of the proper standards (see, People v. Knight, 87 N.Y.2d 873, 638 N.Y.S.2d 938, 662 N.E.2d 256).

We perceive no abuse of sentencing discretion.

MEMORANDUM DECISION.