PEOPLE v. JENNINGS

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Darin JENNINGS, Defendant-Appellant.

Decided: June 14, 2002

Present:  HAYES, J.P., WISNER, KEHOE, GORSKI, and LAWTON, JJ. The Legal Aid Bureau of Buffalo, Inc., Buffalo (Louise M. Szimonisz of Counsel), for Defendant-Appellant. Frank J. Clark, District Attorney, Buffalo (J. Michael Marion of Counsel), for Plaintiff-Respondent.

 Defendant appeals from a judgment convicting him after a jury trial of robbery in the third degree (Penal Law § 160.05) and sentencing him as a second felony offender to an indeterminate term of incarceration of 2 1/212 to 5 years.   Defendant's challenge to the admission of testimony that allegedly bolstered the identification testimony is not preserved for our review (see People v. Sinkler, 288 A.D.2d 844, 845, 732 N.Y.S.2d 608), 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] ).

 We reject defendant's contention that Supreme Court erred in refusing to suppress the identification testimony.   In support of that contention, defendant erroneously relies on trial testimony;  our review is limited to the evidence presented at the suppression hearing (see People v. Millan, 69 N.Y.2d 514, 518 n. 4, 516 N.Y.S.2d 168, 508 N.E.2d 903;  People v. Gonzalez, 55 N.Y.2d 720, 721-722, 447 N.Y.S.2d 145, 431 N.E.2d 630, rearg. denied 55 N.Y.2d 1038, 449 N.Y.S.2d 1030, 434 N.E.2d 1081, cert. denied 456 U.S. 1010, 102 S.Ct. 2304, 73 L.Ed.2d 1306).   The uncontroverted evidence at the Wade hearing established that the witness's identification of defendant in the back seat of the patrol car occurred by happenstance and was not orchestrated by police.   In any event, it is well settled that procedures that are less than ideal are tolerable in the interest of prompt identification, particularly where, as here, the identification occurred “in close geographic and temporal proximity to the crime” (People v. Ortiz, 90 N.Y.2d 533, 537, 664 N.Y.S.2d 243, 686 N.E.2d 1337;  see People v. Walker, 292 A.D.2d 791, 738 N.Y.S.2d 788 [Mar. 15, 2002] ) under circumstances that were “not so unnecessarily suggestive as to create a substantial likelihood of misidentification” (People v. Duuvon, 160 A.D.2d 653, 653, 559 N.Y.S.2d 270, affd. 77 N.Y.2d 541, 569 N.Y.S.2d 346, 571 N.E.2d 654).   The fact that defendant was handcuffed and in the patrol car did not render the procedure unduly suggestive (see Duuvon, 77 N.Y.2d at 545, 569 N.Y.S.2d 346, 571 N.E.2d 654).

The evidence is legally sufficient to support the conviction and the verdict is not against the weight of the evidence (see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Defendant's challenge to the severity of the sentence is without merit.

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

MEMORANDUM: