The People, etc., respondent, v. Lawrence Scott, appellant. (2011)

Argued—May 19, 2011

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lasak, J.), rendered October 2, 2008, convicting him of robbery in the first degree (two counts), robbery in the second degree (two counts), and criminal possession of stolen property in the third degree (two counts), upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing (Griffin, J.), of that branch of the defendant's omnibus motion which was to suppress identification evidence.

ORDERED that the judgment is affirmed.

Based upon the papers in support of and in opposition to that branch of the defendant's omnibus motion which was to suppress identification evidence, the Supreme Court properly determined that the defendant was not entitled to a Wade hearing (see United States v. Wade, 388 U.S. 218) on the ground that no identification procedure had been conducted by law enforcement authorities (see People v. Rios, 156 A.D.2d 397;  cf.  People v. Dixon, 85 N.Y.2d 218).   To the extent that the defendant relies upon evidence subsequently adduced at a Mapp/Dunaway hearing (see Mapp v. Ohio, 367 U.S. 643;  Dunaway v. New York, 442 U.S. 200) and at trial, his contention is unpreserved for appellate review since he did not seek to reopen his request for a Wade hearing based upon that evidence (see People v. Clanton, 69 AD3d 754, 754).

The defendant correctly contends that the prosecutor improperly cross-examined him about his silence when he was apprehended by the police (see People v. Wright, 40 AD3d 1021;  People v. Thompson, 34 AD3d 852).   The error, however, was harmless beyond a reasonable doubt in that the evidence of the defendant's guilt, without reference to the error, was overwhelming, and there is no reasonable possibility that the error might have contributed to his conviction (see People v. Crimmins, 36 N.Y.2d 230, 237;  People v. Rush, 44 AD3d 799, 800).

The defendant's claim that the statutory procedure underlying his adjudication and sentencing as a persistent violent felony offender was unconstitutional is without merit (see Apprendi v. New Jersey, 530 U.S. 466;  People v. Leon, 10 NY3d 122, 126, cert denied 554 U.S. 926;  People v. Terry, 78 AD3d 1207;  People v. Alvarez, 76 AD3d 1098, 1099, lv granted 16 NY3d 827).

PRUDENTI, P.J., ANGIOLILLO, FLORIO and COHEN, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court