People v. DiPalo

• Decision Date: 13 November 1995
• Citation: 633 N.Y.S.2d 803,221 A.D.2d 463
• Parties: The PEOPLE, etc., Respondent, v. Gennaro DiPALO, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 803

633 N.Y.S.2d 803

221 A.D.2d 463

The PEOPLE, etc., Respondent, v. Gennaro DiPALO, Appellant.

Supreme Court, Appellate Division,

Second Department.

Nov. 13, 1995.

Keara M. O'Dempsey, New York City, for appellant.

Charles J. Hynes, District Attorney, Brooklyn (Roseann B. MacKechnie, Monique Ferrell, and Stephen D. Kong, of counsel), for respondent.

Before BRACKEN, J.P., and MILLER, ALTMAN and FLORIO, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Juviler, J.), rendered May 25, 1993, convicting him of robbery in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Barasch, J.), of the branch of the defendant's omnibus motion which was to suppress identification testimony.

ORDERED that the judgment is affirmed.

The defendant's contention concerning the reliability of the hearing court's findings is unpreserved for appellate review (see, CPL 470.05[2]; People v. Sumpter, 192 A.D.2d 628, 596 N.Y.S.2d 158). Where, as here, the defendant fails to move to reopen the hearing, trial testimony cannot be used to challenge the suppression ruling (see, People v. Diaz, 194 A.D.2d 688, 689, 599 N.Y.S.2d 111). In any event, the defendant's contentions are without merit, insofar as the arresting officer's testimony at the Wade hearing did not raise a substantial issue as to the constitutionality of the identification procedure (see, People v. Chipp, 75 N.Y.2d 327, 337, 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. Harvall, 196 A.D.2d 553, 601 N.Y.S.2d 146).

Nor has the defendant preserved his contention that the court erred in precluding him from testifying about two unrelated lineups in which he had not been identified by witnesses (see, CPL 470.05[2]; People v. Black, 138 A.D.2d 498, 498-499, 526 N.Y.S.2d 32). In any event, this contention is without merit, since the defendant failed to make a clear and unambiguous offer of proof demonstrating the relevance of the defendant's proposed testimony regarding the two other lineups (see, People v. Billups, 132 A.D.2d 612, 613, 518 N.Y.S.2d 9). "While due process requires that a defendant in a criminal case be permitted to call witnesses in his [or her] own behalf and to introduce evidence that a person other than he [or she] committed the crime charged (see, Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297), 'such evidence must do more than raise a mere suspicion that another person committed the crime; there must be a clear link between the third party and the crime in question' " (People v. Santano, 187 A.D.2d 618, 618, 590 N.Y.S.2d 113, quoting People v. Zanfordino, 157 A.D.2d 682, 683, 549 N.Y.S.2d 782).

Viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient...