People v. Bowers
| Decision Date | 02 March 1987 |
| Parties | The PEOPLE, etc., Respondent, v. Darrell BOWERS, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Elaine D. McKnight, Brooklyn, for appellant.
Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood and Richard T. Faughnan, of counsel; John R. Wiess, on the brief), for respondent.
Before MOLLEN, P.J., and LAWRENCE, KUNZEMAN and SULLIVAN, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Spodek, J.), rendered March 15, 1983, convicting him of robbery in the first degree and arson in the second degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress identification evidence.
ORDERED that the judgment is affirmed.
The defendant's argument that the court erred in denying that branch of his omnibus motion which was to suppress identification testimony based on the occurrence of allegedly suggestive pretrial identification procedures is without merit. The defendant's photograph was selected by the complaining witness on two different occasions from two different photo-arrays. The defendant does not assert that either photo-array was itself suggestive; rather, he argues that the very procedure of employing two different arrays, each containing his picture, was improper. However, we find that since the witness's first photographic identification was a positive one, there was no suggestivity inherent in this procedure (see, People v. Malphurs, 111 A.D.2d 266, 268, 489 N.Y.S.2d 102; see also, People v. Carter, 106 A.D.2d 654, 656-657, 482 N.Y.S.2d 911; People v. Van Buren, 87 A.D.2d 900, 449 N.Y.S.2d 366).
The defendant also argues that the court should have granted his application to withdraw his plea of guilty. He wrote a letter to the court prior to sentencing in which he alleged that he had been given improper advice by his attorney as to the maximum sentence he would face. The court, at sentencing, allowed the defendant to make any additional arguments in support of his motion to withdraw his plea, but the defendant declined to do so. The court then properly denied the motion, noting that the record of the plea allocution totally belied the defendant's assertion that he was under a misapprehension as to the maximum sentence that could be imposed for the crime with which he was charged.
The defendant also argues, for the first time on appeal, that the court abused its discretion when it revoked a previous order which had fixed bail and instead ordered that defendant be committed to the custody of the sheriff during the pendency of the action (CPL 530.60). This order was made during the course of the pretrial Wade hearing. The order revoking bail was made upon the basis of the court's finding, after a brief hearing, that the defendant and a...
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