PEOPLE v. MARTIN (2005)

Appeal by the defendant from a judgment of the County Court, Westchester County (Smith, J.), rendered October 15, 2002, convicting him of robbery in the second degree (two counts) and resisting arrest, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress identification testimony.

ORDERED that the judgment is affirmed.

Assuming, as the defendant argues, that the hearing court improvidently exercised its discretion in restricting his cross-examination of the victim at the Wade hearing (see United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149), the hearing court nevertheless properly denied that branch of the defendant's omnibus motion which was to suppress identification testimony regarding the victim's showup identification of the defendant.   The record fully supports the hearing court's determination that there was an independent basis for the victim's in-court identification of the defendant (see People v. Parker, 127 A.D.2d 614, 615, 511 N.Y.S.2d 412).   Furthermore, any purported error in the admission of the relevant testimony was harmless beyond a reasonable doubt in light of the overwhelming evidence of the defendant's guilt (see People v. Harris, 80 N.Y.2d 796, 587 N.Y.S.2d 277, 599 N.E.2d 681;  People v. Christie, 18 A.D.3d 770, 794 N.Y.S.2d 911, lv. denied 5 N.Y.3d 760, 801 N.Y.S.2d 255, 834 N.E.2d 1265).

Contrary to the defendant's contention, the procedure pursuant to which he was sentenced as a persistent felony offender did not violate his constitutional rights (see People v. Rivera, 5 N.Y.3d 61, 800 N.Y.S.2d 51, 833 N.E.2d 194, cert. denied 546 U.S. 984, 126 S.Ct. 564, 163 L.Ed.2d 473;  People v. Rosen, 96 N.Y.2d 329, 728 N.Y.S.2d 407, 752 N.E.2d 844, cert. denied 534 U.S. 899, 122 S.Ct. 224, 151 L.Ed.2d 160;  People v. Jordan, 21 A.D.3d 1039, 800 N.Y.S.2d 850).

The defendant's remaining contentions, including those raised in his supplemental pro se brief, are either not preserved for appellate review, do not require reversal, or are without merit.