People v. Katowski

• Citation: 611 N.Y.S.2d 907,204 A.D.2d 486
• Parties: The PEOPLE, etc., Respondent, v. John KATOWSKI, Appellant.
• Decision Date: 09 May 1994
• Court: New York Supreme Court — Appellate Division

Page 907

611 N.Y.S.2d 907

204 A.D.2d 486

The PEOPLE, etc., Respondent, v. John KATOWSKI, Appellant.

Supreme Court, Appellate Division,

Second Department.

May 9, 1994.

Steven A. Hoffner, New York City, for appellant.

Charles J. Hynes, Dist. Atty., Brooklyn (Roseann B. MacKechnie, Michael Gore, Caroline R. Donhauser and Susan F. Gerry, of counsel), for respondent.

Before BRACKEN, J.P., and O'BRIEN, SANTUCCI and JOY, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Juviler, J.), rendered March 24, 1992, convicting him of robbery in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's conviction arises from an armed robbery of a jewelry store, in which he was the driver of the getaway car. After Donald Goldston, one of the proprietors of the jewelry store and a former police officer, observed the robber enter the beige car in which the defendant was seated and drive from the scene, Goldston commandeered a nearby ambulance and pursued the perpetrators. After a high speed chase, the defendant was apprehended by the police and identified by Goldston.

At the defendant's Criminal Court arraignment the following day, the People served the defendant with a Voluntary Disclosure Form (hereinafter VDF) containing notice of Goldston's identification pursuant to CPL 710.30(1)(b). At the defendant's Supreme Court arraignment over one month later, the People served the defendant with another VDF, this one stating that there had been "no police arranged ID". Nearly one month later, the People served an "amended" VDF on the defendant, which was virtually identical to the one originally served, but specified that the identification procedure was a "show-up". Thereafter, in his omnibus motion, the defendant sought suppression of the identification disclosed in the People's "notice pursuant to CPL 710.30(1)(b)" on the basis that it was "impermissibly suggestive".

After the Wade hearing almost 10 months later, the court ruled that the identification was not unduly suggestive, and rejected the defense argument that the identification should be suppressed because no identification of the defendant by Goldston ever took place, as evidenced by the discrepancies between the first and second VDFs. Accordingly, the court denied suppression.

On appeal, the defendant asserts that testimony as to the identification should have been precluded because the People's final VDF was not timely served, and no good cause was shown for the delay (see, CPL 710.30[2], [3]; People v. Boughton, 70 N.Y.2d 854, 523 N.Y.S.2d 454, 517 N.E.2d 1340; People v. O'Doherty, 70 N.Y.2d 479, 522 N.Y.S.2d 498, 517 N.E.2d 213; People v. Hines, 200 A.D.2d 634, 606 N.Y.S.2d 748 [2d Dept., 1994]. Having failed to present this specific argument before the hearing court, however, the defendant did not preserve this claim for this court's review (see, CPL 470.05[2]; People v. Udzinski, 146 A.D.2d 245, 541 N.Y.S.2d 9). Moreover, because the defendant moved to suppress the identification evidence, proceeded with the Wade hearing, and obtained a determination on the motion from the hearing court, the defendant has waived any claim that the court should have precluded this testimony based upon untimely service of the final VDF (see, CPL 710.30[3]; People v. Amparo, 73 N.Y.2d...