PEOPLE v. SMITH (2005)

Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., respondent, v. Andy SMITH, appellant.

Decided: October 03, 2005

HOWARD MILLER, J.P., ROBERT W. SCHMIDT, THOMAS A. ADAMS, and GLORIA GOLDSTEIN, JJ.

Lynn W.L. Fahey, New York, N.Y. (Michelle Mogal of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, and Tara Coughlin of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kron, J.), rendered January 9, 2003, convicting him of burglary in the third degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Demakos, J.H.O.), of those branches of the defendant's omnibus motion which were to suppress identification testimony, physical evidence, and his statements to law enforcement officials.

ORDERED that the judgment is affirmed.

Although the hearing court erred in denying the defendant's motion to suppress the show-up identification, the recovered property, and his statements to law enforcement officials, any error in admitting the evidence was harmless because the other evidence of the defendant's guilt, including the identification testimony of an eyewitness who was not present at the show-up identification, was overwhelming (see People v. Crimmins, 36 N.Y.2d 230, 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787; People v. Richardson, 294 A.D.2d 379, 380, 742 N.Y.S.2d 645; People v. Sturgis, 199 A.D.2d 549, 550, 606 N.Y.S.2d 241).

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