PEOPLE v. MILLER

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

The PEOPLE of the State of New York, Respondent, v. Alfred MILLER, Defendant-Appellant.

Decided: September 28, 2007

PRESENT:  MARTOCHE, J.P., SMITH, PERADOTTO, GREEN, AND PINE, JJ. Edward J. Nowak, Public Defender, Rochester (Drew R. DuBrin of Counsel), for Defendant-Appellant. Michael C. Green, District Attorney, Rochester (Patrick H. Fierro of Counsel), for Respondent.

 On appeal from a judgment convicting him of, inter alia, robbery in the second degree (Penal Law § 160.10[1] ) and two counts of attempted robbery in the third degree (§§ 110.00, 160.05), defendant contends that County Court erred in refusing to suppress the identification testimony of two witnesses because the showup identification procedures were conducted in the parking lot of a police station.   We agree with the People that defendant failed to preserve his contention for our review inasmuch as he failed to raise that specific contention either in that part of his omnibus motion seeking suppression of the identification testimony or at the Wade hearing (see People v. De Vivo, 282 A.D.2d 770, 771, 726 N.Y.S.2d 145, lv. denied 96 N.Y.2d 900, 730 N.Y.S.2d 798, 756 N.E.2d 86;  People v. Katowski, 204 A.D.2d 486, 487, 611 N.Y.S.2d 907, lv. denied 84 N.Y.2d 869, 618 N.Y.S.2d 14, 642 N.E.2d 333).   In any event, we conclude that the showup identification procedures were not unduly suggestive (see People v. Smith, 286 A.D.2d 636, 730 N.Y.S.2d 495, lv. denied 97 N.Y.2d 688, 738 N.Y.S.2d 304, 764 N.E.2d 408;  People v. Clark, 262 A.D.2d 1051, 692 N.Y.S.2d 274, lv. denied 93 N.Y.2d 1016, 697 N.Y.S.2d 574, 719 N.E.2d 935).

 Contrary to the further contention of defendant, the court properly denied that part of his omnibus motion seeking to sever the first two counts of the indictment from the second two counts.   The “unelaborated contention [of defendant] that he had an important need to testify in one case and strong reasons to refrain from doing so as to the other [was] insufficient to support a showing of ‘good cause’ warranting separate trials in the interests of justice” (People v. Colon, 32 A.D.3d 791, 791, 821 N.Y.S.2d 203, lv. denied 7 N.Y.3d 924, 827 N.Y.S.2d 693, 860 N.E.2d 995;  see People v. Peterkin, 12 A.D.3d 1026, 1027, 785 N.Y.S.2d 620, lv. denied 4 N.Y.3d 766, 792 N.Y.S.2d 10, 825 N.E.2d 142).   As the People correctly note, the provision for an in camera ex parte hearing applies only if the defendant has made a “written or recorded showing concerning [his] genuine need to refrain from testifying” on some counts, and it does not apply to testimony the defendant would give with respect to the other counts (CPL 200.20[3][b][ii];  see People v. Burrows, 280 A.D.2d 132, 134-135, 722 N.Y.S.2d 675, lv. denied 96 N.Y.2d 826, 729 N.Y.S.2d 446, 754 N.E.2d 206).

Finally, defendant correctly concedes that he failed to preserve for our review his contention that he was denied a fair trial when the prosecutor improperly questioned him with respect to his pretrial silence (see People v. Walls, 239 A.D.2d 906, 661 N.Y.S.2d 808, lv. denied 90 N.Y.2d 912, 663 N.Y.S.2d 524, 686 N.E.2d 236;  People v. Goss, 229 A.D.2d 791, 792, 646 N.Y.S.2d 397), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: