PEOPLE v. TATUM (2007)

Appeal by the defendant from a judgment of the County Court, Suffolk County (Ohlig, J.), rendered July 24, 2003, convicting him of robbery in the first degree (two counts) and robbery in the second degree (two counts), 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 evidence.

ORDERED that the judgment is affirmed.

 The defendant failed to preserve for appellate review his contention that the police lacked reasonable suspicion to stop and detain him (see CPL 470.05 [2];  People v. Frazier, 171 A.D.2d 809, 567 N.Y.S.2d 611).   In any event, the contention is without merit since the complainant's general description of the perpetrator, which matched the defendant, combined with the defendant's temporal and spatial proximity to the robbery, provided the police with reasonable suspicion to stop and detain him (see People v. Hunt, 306 A.D.2d 497, 762 N.Y.S.2d 416;  People v. Lynch, 285 A.D.2d 518, 728 N.Y.S.2d 489, cert. denied 535 U.S. 1081, 122 S.Ct. 1968, 152 L.Ed.2d 1027).

 “Showup procedures are permissible when, as here, they are conducted in close spatial and temporal proximity to the commission of a crime” (People v. Abdelghany, 14 A.D.3d 711, 711-712, 788 N.Y.S.2d 614;  People v. Ortiz, 90 N.Y.2d 533, 537, 664 N.Y.S.2d 243, 686 N.E.2d 1337).   The defendant's contention that the showup identification was unduly suggestive is without merit (see People v. Abdelghany, supra at 711-712, 788 N.Y.S.2d 614).

The defendant's argument that the Supreme Court did not comply with the procedural requirements of Penal Law § 70.10 and CPL 400.20 in adjudicating him a persistent felony offender is unpreserved for appellate review and, in any event, is without merit (see Penal Law § 70.10[1][a];  CPL 400.15[2], [3], [4];  400.16[2];  400.20[1][a];  People v. Cooper, 241 A.D.2d 553, 554, 661 N.Y.S.2d 243;  People v. Martin, 167 A.D.2d 428, 429, 561 N.Y.S.2d 834).

Contrary to the defendant's contention, the prosecutor's summation comments were either responsive to the defense counsel's summation or fair comment upon the evidence (see People v. McHarris, 297 A.D.2d 824, 748 N.Y.S.2d 57;  People v. Stover, 254 A.D.2d 377, 377-378, 678 N.Y.S.2d 734).

The defendant's challenge to the legal sufficiency of the evidence is unpreserved for appellate review (see CPL 470.05[2];  People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919).   In any event, viewing the evidence in the light most favorable to the prosecution, we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt (see People v. Lewis, 64 N.Y.2d 1111, 1112, 490 N.Y.S.2d 166, 479 N.E.2d 802;  Penal Law § 125.20[1] ).   Moreover, upon the exercise of our factual review power (see CPL 470.15[5] ), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).