People v. Dawson

• Decision Date: 10 August 1992
• Citation: 587 N.Y.S.2d 358,185 A.D.2d 854
• Parties: The PEOPLE, etc., Respondent, v. Michael DAWSON, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 358

587 N.Y.S.2d 358

185 A.D.2d 854

The PEOPLE, etc., Respondent, v. Michael DAWSON, Appellant.

Supreme Court, Appellate Division Second Department.

Aug. 10, 1992.

Patrick Michael McKenna, Valley Stream, for appellant.

Carl A. Vergari, Dist. Atty., White Plains (Gregory H. Babikian and Maryanne Luciano, of counsel), for respondent.

Before BRACKEN, J.P., and SULLIVAN, ROSENBLATT and LAWRENCE, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the County Court, Westchester County (Lange, J.), rendered March 9, 1990, convicting him of robbery in the first degree, robbery in the second degree, criminal possession of a weapon in the third degree, and grand larceny in the fourth degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of those branches of the defendant's omnibus motion which were to suppress physical evidence and his statement to the police, and the denial, without a hearing, of that branch of the defendant's omnibus motion which was to suppress identification testimony.

ORDERED that the judgment is affirmed.

On December 13, 1988, at approximately 6 P.M., Police Officer Nicastro and his partner, Police Officer Maffei, were in uniform on patrol in a marked police vehicle in Yonkers. When they arrived at the vicinity of South Broadway and Highland Avenue they were flagged down by the complainant. The complainant told them that he was robbed at knifepoint on Elliot Avenue by two men. He also stated that the assailants were walking northbound on South Broadway. He then got into the police car and they searched for his assailants. About 45 seconds later, and a few blocks away, the complainant pointed out to the officers two men whom he identified as having robbed him. The officers then pulled up in front of the defendant and the codefendant and placed them under arrest.

The defendant contends that a Wade hearing should have been held in response to the branch of his motion which was to suppress identification testimony. We disagree. That branch of the defendant's motion was properly denied because the identification was made spontaneously and was not the product of an identification procedure arranged by the police ( see, People v. McCarter, 179 A.D.2d 780, 579 N.Y.S.2d 143; People v. Rios, 156 A.D.2d 397, 548 N.Y.S.2d 348; People v. Dukes, 97 A.D.2d 445, 467 N.Y.S.2d 287).

The trial court did not improvidently exercise its discretion in rendering a Sandoval ruling by which the prosecutor would be...