PEOPLE v. SMITH

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

The PEOPLE of the State of New York, Respondent, v. Jonathan SMITH, Defendant-Appellant.

Decided: April 20, 2000

ROSENBERGER, J.P., WILLIAMS, RUBIN, SAXE and BUCKLEY, JJ. Ann M. Olson, for Respondent. Steven Berko, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Charles Solomon, J., on omnibus motion;  Marcy Kahn, J., at suppression hearing, jury trial and sentence), rendered February 13, 1997, convicting defendant of robbery in the second degree, and sentencing him, as a second felony offender, to a term of 13 years, unanimously affirmed.

 The Dunaway branch of defendant's suppression motion was properly denied without a hearing since defendant's conclusory allegations were insufficient to raise an issue of fact as to the lawfulness of his arrest in light of his failure to controvert the specific information provided by the People as to the circumstances of the incident (see, People v. Mendoza, 82 N.Y.2d 415, 604 N.Y.S.2d 922, 624 N.E.2d 1017;  People v. Suggs, 268 A.D.2d 305, 700 N.Y.S.2d 713;  People v. Rosario, 245 A.D.2d 151, 665 N.Y.S.2d 662, lv. denied 91 N.Y.2d 896, 669 N.Y.S.2d 11, 691 N.E.2d 1037).

 The court properly denied defendant's motion to suppress identification testimony since the showup, which was conducted 20 to 25 five minutes after the robbery, within eight blocks of the crime scene, was not unduly suggestive (see, People v. Duuvon, 77 N.Y.2d 541, 569 N.Y.S.2d 346, 571 N.E.2d 654).   Although uniformed police officers were standing near the handcuffed defendant at the time of the identifications, the witnesses viewed him while he was standing near his codefendant and the officers told the witnesses that they would be viewing a “possible” suspect, these facts did not render the identification procedure unduly suggestive (see, People v. Sanabria, 266 A.D.2d 41, 698 N.Y.S.2d 622, lv. denied 94 N.Y.2d 884, 705 N.Y.S.2d 17, 726 N.E.2d 494;  People v. Moore, 264 A.D.2d 693, 695 N.Y.S.2d 94, lv. denied 94 N.Y.2d 826, 702 N.Y.S.2d 597, 724 N.E.2d 389).

The challenged portions of the prosecutor's cross-examination of defendant were proper attacks on his credibility and did not deprive him of a fair trial (see, People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572, lv. denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724).

 We perceive no abuse of sentencing discretion.

MEMORANDUM DECISION.