People v. Lomack, 1

• Decision Date: 07 June 1991
• Docket Number: No. 1,1
• Citation: 572 N.Y.S.2d 977,174 A.D.2d 1037
• Parties: PEOPLE of the State of New York, Respondent, v. Calvin LOMACK, Appellant. Appeal
• Court: New York Supreme Court — Appellate Division

Page 977

572 N.Y.S.2d 977

174 A.D.2d 1037

PEOPLE of the State of New York, Respondent, v. Calvin LOMACK, Appellant. Appeal No. 1.

Supreme Court, Appellate Division, Fourth Department.

June 7, 1991.

Edward J. Nowak by Stephen Bird, Rochester, for appellant.

Howard R. Relin by Loretta Courtney, Rochester, for respondent.

Before DILLON, P.J., and CALLAHAN, BOOMER, BALIO and LOWERY, JJ.

MEMORANDUM:

The hearing court properly concluded that the showup identification procedure used in this case was not unduly suggestive. Showup identifications are permissible when conducted proximate in time and place to the alleged crime and to defendant's detention (see, People v. Shippens, 136 A.D.2d 944, 524 N.Y.S.2d 957, lv. denied 71 N.Y.2d 1033, 530 N.Y.S.2d 568, 526 N.E.2d 61; see also, People v. Duuvon, 77 N.Y.2d 541, 569 N.Y.S.2d 346, 571 N.E.2d 654; People v. Love, 57 N.Y.2d 1023, 1024, 457 N.Y.S.2d 474, 443 N.E.2d 948; People v. Smith, 38 N.Y.2d 882, 382 N.Y.S.2d 745, 346 N.E.2d 546, affg. 46 A.D.2d 639, 360 N.Y.S.2d 256). The fact that the complainant knew that the police were bringing a suspect to his home does not itself render the procedure unduly suggestive. Defendant was identified in the parking area of complainant's home shortly after he accosted the complainant and directly after his detention by the police. The suppression court's finding that the procedure was not unduly suggestive is fully supported by the record (see, People v. James, 110 A.D.2d 1037, 488 N.Y.S.2d 896; People v. Cole, 100 A.D.2d 442, 445-446, 474 N.Y.S.2d 149; see also, People v. Shippens, supra; People v. Perez, 123 A.D.2d 889, 507 N.Y.S.2d 666, lv. denied 69 N.Y.2d 831, 513 N.Y.S.2d 1039, 506 N.E.2d 550).

We also reject defendant's contention that he was denied a fair trial by improper implicit bolstering. This argument has not been preserved for review (see, CPL 470.05[2], and the error, if any, must be deemed harmless in light of the strong identification testimony offered by the complainant (see, People v. Johnson, 57 N.Y.2d 969, 457 N.Y.S.2d 230, 443 N.E.2d 478; People v. Cabble, 171 A.D.2d 517, 567 N.Y.S.2d 243; People v. Berni, 134 A.D.2d 436, 521 N.Y.S.2d 249, appeal denied70 N.Y.2d 952, 525 N.Y.S.2d 836, 520 N.E.2d 554; People v. Hall, 82 A.D.2d 838, 439 N.Y.S.2d 661).

Finally, defendant's contention that he should have a new trial because the court conducted a Sandoval hearing in his absence is unpreserved and, in any event, lacks merit in the absence of any allegation of prejudice (see, People v. Favor, 172 A.D.2d 1052, 571 N.Y.S.2d 408; People v. Dunbar, 172 A.D.2d 1006, 569 N.Y.S.2d 266).

Judgment unanimously affirmed.