People v. Decker
| Decision Date | 23 November 1987 |
| Citation | 134 A.D.2d 511,521 N.Y.S.2d 98 |
| Parties | The PEOPLE, etc., Respondent, v. Alan R. DECKER, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Lawrence L. Friedman, Lawrence, for appellant.
Denis Dillon, Dist. Atty., Mineola (Anthony J. Girese and Marea M. Suozzi, of counsel), for respondent.
Before THOMPSON, J.P., and NIEHOFF, RUBIN and SULLIVAN, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from a judgment of the County Court, Nassau County (Thorp, J.), rendered March 5, 1985, convicting him of burglary in the second degree, 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 for the suppression of identification testimony.
ORDERED that the judgment is affirmed.
We reject the defendant's contention that a witness's out-of-court identification of him should have been suppressed since it was made under unduly suggestive circumstances. We initially observe that the pretrial encounter was not a "police-arranged [confrontation] * * * between [the] defendant and an eyewitness * * * for the purpose of establishing the identity of the criminal actor" (People v. Gissendanner, 48 N.Y.2d 543, 552, 423 N.Y.S.2d 893, 399 N.E.2d 924), but was, rather "a mere happenstance unoccasioned by law enforcement officials" (People v. Logan, 25 N.Y.2d 184, 193, 303 N.Y.S.2d 353, 250 N.E.2d 454, cert. denied 396 U.S. 1020, 90 S.Ct. 592, 24 L.Ed.2d 513). As such, it is not subject to suppression (see, People v. Whisby, 48 N.Y.2d 834, 424 N.Y.S.2d 344, 400 N.E.2d 286; People v. Parker, 127 A.D.2d 614, 511 N.Y.S.2d 412, lv. denied 69 N.Y.2d 1008, --- N.Y.S.2d ----, 511 N.E.2d 100; People v. Lopez, 118 A.D.2d 873, 500 N.Y.S.2d 359, lv. denied 68 N.Y.2d 670, 505 N.Y.S.2d 1035, 496 N.E.2d 693).
Even if it may be said that the confirmatory identification which occurred near the scene of the burglary within minutes thereafter and immediately after the accidental encounter was the proper subject of a Wade hearing, the record supports the hearing court's conclusion that it was not unduly suggestive (see, People v. Medina, 111 A.D.2d 190, 488 N.Y.S.2d 819; People v. Soto, 87 A.D.2d 618, 448 N.Y.S.2d 25), and that, in any event, an independent basis existed for the in-court identification.
We have examined the defendant's remaining contentions and find them to be either unpreserved for appellate review or without merit.
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