PEOPLE v. HARRIS (2001)

Judgment, Supreme Court, New York County (Budd Goodman, J. on motion;  Arlene Silverman, J. at jury trial and sentence), rendered June 26, 2000, convicting defendant of robbery in the first and second degrees, and sentencing him to concurrent terms of 3 to 6 years and 2 1/414 to 4 1/212 years, respectively, unanimously affirmed.

 The motion court's summary denial of defendant's motion to suppress identification testimony was proper.   Defendant did not dispute the People's detailed and repeated submissions, which established that the identification procedure, rather than being a police canvass, had been completely civilian-initiated, so that it was outside the category of identifications subject to Wade hearings (see, People v. Dixon, 85 N.Y.2d 218, 222 223, 623 N.Y.S.2d 813, 647 N.E.2d 1321;  see also, People v. Burgos, 219 A.D.2d 504, 631 N.Y.S.2d 336, lv. denied 86 N.Y.2d 872, 635 N.Y.S.2d 953, 659 N.E.2d 776).   Thus, there was no factual issue warranting a hearing (see, People v. Lewis, 258 A.D.2d 287, 685 N.Y.S.2d 51).

 The court's supplemental charge on accessorial liability, delivered in response to a note from the deliberating jury requesting further instructions on that subject, was not rendered defective by the absence of any mention of the identification issue.   Identification had been the principal issue at trial and the court had given an extensive identification instruction in its main charge. The court's reference to defendant by name in its discussion of the roles in the crime played by defendant and his codefendant, in relation to the law of accessorial liability, “could not have misled the jury to believe that the central issue of identity had disappeared from the case.”  (People v. Smith, 260 A.D.2d 253, 254, 690 N.Y.S.2d 6, lv. denied 93 N.Y.2d 1006, 695 N.Y.S.2d 752, 717 N.E.2d 1089;  see also, People v. Feliz, 251 A.D.2d 134, 674 N.Y.S.2d 326, lv. denied 92 N.Y.2d 896, 680 N.Y.S.2d 60, 702 N.E.2d 845).

Defendant's remaining contentions are unpreserved and we decline to review them in the interest of justice.   Were we to review these claims, we would reject them.