People v. Brown

• Citation: 187 A.D.2d 437,590 N.Y.S.2d 732
• Parties: The PEOPLE, etc., Respondent, v. Sharod BROWN, Appellant.
• Decision Date: 02 November 1992
• Court: New York Supreme Court Appellate Division

Page 732

590 N.Y.S.2d 732

187 A.D.2d 437

The PEOPLE, etc., Respondent, v. Sharod BROWN, Appellant.

Supreme Court of New York, Appellate Division,

Second Department.

November 2, 1992

Philip L. Weinstein, New York City (Barry Stendig, of counsel; Abraham B. Fineberg, on the brief), for appellant, and appellant pro se. Charles J. Hynes, Dist. Atty., Brooklyn (Jay M. Cohen, Sholom J. Twersky, and Shelley D. Miller, of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Goldberg, J.), rendered May 30, 1990, convicting him of robbery in the first degree and robbery in the second degree (two counts), upon a jury verdict, 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 testimony. ORDERED that the judgment is affirmed. The defendant's contention that the People were required to present the testimony of the complaining witness at the Wade hearing is unpreserved for appellate review since the defendant failed to raise this issue at the suppression hearing (see, People v. Gonzalez, 55 N.Y.2d 887, 449 N.Y.S.2d 18, 433 N.E.2d 1266).). In any event, this contention is without merit. The record reveals that the prosecution satisfied its initial burden of establishing that the identification of the defendant was not the product of an unduly suggestive, police-arranged procedure, and the defendant failed to meet his ultimate burden of proving that the procedure was unduly suggestive. Accordingly, the prosecution was not required to elicit evidence from the complainant that a source independent of the pre-trial identification procedure exists for an in-court identification (see, People v. Chipp, 75 N.Y.2d 327, 553 N.Y.S.2d 72, 552 N.E.2d 608, cert. denied, 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70; People v. Hucks, 175 A.D.2d 213, 572 N.Y.S.2d 352; People v. Tweedy, 134 A.D.2d 467, 521 N.Y.S.2d 92). The defendant further contends that he was denied a fair trial by the prosecution's delay in disclosing Brady material until three weeks prior to the trial (see, Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215). This issue is unpreserved for appellate review since the trial court imposed the sanction requested by the defendant for the delay in producing the material (see, CPL 470.05). In any event, the defendant was not denied a fair trial since he was given a meaningful opportunity to use the exculpatory material to...