PEOPLE v. CANNON (2004)

Judgment, Supreme Court, New York County (Rena Uviller, J.), rendered February 14, 2003, convicting defendant, after a jury trial, of kidnapping in the second degree and robbery in the second degree, and sentencing him, as a persistent violent felony offender, to concurrent terms of 25 years to life, unanimously affirmed.

 The court properly denied defendant's motion to suppress identification testimony.   The record supports the hearing court's finding that the victim's accidental viewing of defendant in custody was not a police-arranged identification procedure (see People v. Clark, 85 N.Y.2d 886, 888-889, 626 N.Y.S.2d 59, 649 N.E.2d 1203 [1995];  People v. Powell, 269 A.D.2d 178, 703 N.Y.S.2d 710 [2000], lv. denied 94 N.Y.2d 951, 710 N.Y.S.2d 8, 731 N.E.2d 625 [2000];  People v. Bellinger, 253 A.D.2d 701, 680 N.Y.S.2d 191 [1998], lv. denied 92 N.Y.2d 1028, 684 N.Y.S.2d 493, 707 N.E.2d 448 [1998] ). Rather than being an identification procedure, this incident was the unavoidable result of the unanticipated circumstances in which the victim arrived at a room where defendant was being held.   In any event, the record also supports the court's finding that the victim's in-court identification was based on an independent source, and we would find any error in admitting the accidental viewing to be harmless.

Defendant's constitutional challenge to the procedure under which he was sentenced as a persistent violent felony offender is unpreserved for appellate review and, in any event, is without merit (see People v. Rosen, 96 N.Y.2d 329, 728 N.Y.S.2d 407, 752 N.E.2d 844 [2001], cert. denied 534 U.S. 899, 122 S.Ct. 224, 151 L.Ed.2d 160 [2001] ).   Defendant's sentence as a persistent violent felony offender was triggered solely by his prior convictions (see Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 [1998] ).

The record does not establish that defendant's sentence was based on any improper criteria and we perceive no basis for reducing the sentence.