People v. Dixon

• Decision Date: 14 February 1994
• Parties: The PEOPLE, etc., Respondent, v. Robert DIXON, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 807

609 N.Y.S.2d 807

201 A.D.2d 581

The PEOPLE, etc., Respondent, v. Robert DIXON, Appellant.

Supreme Court of New York, Appellate Division,

Second Department.

Feb. 14, 1994.

Philip L. Weinstein, New York City (Joel Atlas, of counsel), for appellant.

Charles J. Hynes, Dist. Atty., Brooklyn (Roseann B. MacKechnie, Ann Bordley, Michael Napolitano, and Monique Ferrell, of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Miller, J.), rendered March 27, 1992, convicting him of robbery in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, without a hearing (Broomer, J.), of that branch of the defendant's omnibus motion which was to suppress identification testimony.

ORDERED that the judgment is affirmed.

We find that the branch of the defendant's omnibus motion which was for a Wade hearing was properly denied because the complainant's identification of the defendant was made spontaneously and was not the product of an identification procedure arranged by the police (see, People v. Dawson, 185 A.D.2d 854, 587 N.Y.S.2d 358; People v. Rios, 156 A.D.2d 397, 548 N.Y.S.2d 348; People v. Prewitt, 150 A.D.2d 618, 541 N.Y.S.2d 486; People v. Rolon, 145 A.D.2d 658, 536 N.Y.S.2d 991). Moreover, the defendant's request for a hearing to determine whether his arrest was supported by probable cause was properly denied, since his supporting papers were conclusory and failed to set forth factual allegations sufficient to warrant such a hearing (see, Matter of George J., 187 A.D.2d 427, 590 N.Y.S.2d 737, affd. 82 N.Y.2d 415, 604 N.Y.S.2d 922, 624 N.E.2d 1017; People v. Scott, 182 A.D.2d 649, 582 N.Y.S.2d 238; People v. Rodriguez, 162 A.D.2d 478, 556 N.Y.S.2d 401).

The defendant further claims that his rights were violated when the jury requested trial exhibits and the court either failed to respond or did so without consulting counsel. Since this claim rests on matters which are not contained in the record, its presentation on direct appeal is improper (see, People v. Harvall, 196 A.D.2d 533, 601 N.Y.S.2d 146; People v. Brown, 192 A.D.2d 666, 598 N.Y.S.2d 717; People v. Noland, 189 A.D.2d 829, 592 N.Y.S.2d 465).

RITTER, J.P., and PIZZUTO, FRIEDMANN and GOLDSTEIN, JJ., concur.