People v. Lupo

Decision Date13 January 1992
Citation179 A.D.2d 683,579 N.Y.S.2d 112
PartiesThe PEOPLE, etc., Respondent, v. Sal LUPO, Appellant.
CourtNew York Supreme Court — Appellate Division

Steven J. Kosstein, Hempstead, for appellant.

Sal Lupo, pro se.

Richard A. Brown, Dist. Atty., Kew Gardens (Linda LaGreca, of counsel), for respondent.

Before THOMPSON, J.P., and KUNZEMAN, MILLER and COPERTINO, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Farlo, J.), rendered July 18, 1988, convicting him of robbery in the first degree, criminal possession of a weapon in the fourth degree, criminal possession of stolen property in the third degree, criminal possession of stolen property in the fifth degree, and unauthorized use of a motor vehicle in the third degree, upon his plea of guilty, 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 to suppress identification testimony.

ORDERED that the judgment is affirmed.

The credible evidence established that the defendant was informed of his right to appear before the Grand Jury and waived that right. Accordingly, the court properly denied the defendant's late request to testify before the Grand Jury.

In addition, the court properly concluded that the complainant, who stood face to face with her assailant in broad daylight and was able to describe him to the police in some detail, had a source to identify the defendant independent of a tainted showup identification (Gilbert v. California, 388 U.S. 263, 272, 87 S.Ct. 1951, 1956, 18 L.Ed.2d 1178; People v. Ballott, 20 N.Y.2d 600, 606-607, 286 N.Y.S.2d 1, 233 N.E.2d 103; People v. Flores, 160 A.D.2d 1020, 554 N.Y.S.2d 732).

The court properly sentenced the defendant as a persistent violent felony offender. The defendant was afforded an opportunity to contest the validity of the prior convictions upon which the persistent violent felony offender status was based. The validity of the defendant's 1978 conviction was previously adjudicated at a persistent felony hearing on a 1983 conviction and that court's finding of constitutionality is binding (CPL 400.15, 400.16; 400.21[8]; People v. Ross, 138 A.D.2d 543, 526 N.Y.S.2d 39, see also, People v. Conti, 149 A.D.2d 607, 540 N.Y.S.2d 685; People v. Williams, 133 A.D.2d 871, 520 N.Y.S.2d 424; People v. Young, 123 A.D.2d 366, 506 N.Y.S.2d 376). In addition, a review of the plea allocution and sentencing minutes in connection with the 1983 conviction reveal that the defendant was afforded his rights under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 and was apprised of the fact that his conviction could result in an enhanced sentence upon a later conviction. Indeed...

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4 cases
  • People v. Lawrence
    • United States
    • New York Supreme Court — Appellate Division
    • January 13, 1992
  • People v. Lupo
    • United States
    • New York Supreme Court — Appellate Division
    • November 30, 1992
    ...The contention raised in the defendant's supplemental pro se brief has already been determined to be without merit (see, People v. Lupo, 179 A.D.2d 683, 579 N.Y.S.2d 112). THOMPSON, J.P., and BALLETTA, ROSENBLATT and EIBER, JJ., ...
  • People v. Williams
    • United States
    • New York Supreme Court — Appellate Division
    • February 7, 1994
    ...a suggestive photographic identification (see, Gilbert v. California, 388 U.S. 263, 272, 87 S.Ct. 1951, 18 L.Ed.2d 1178; People v. Lupo, 179 A.D.2d 683, 579 N.Y.S.2d 112). Viewing the evidence adduced at the trial in the light most favorable to the People (see, People v. Contes, 60 N.Y.2d 6......
  • People v. Lupo
    • United States
    • New York Court of Appeals Court of Appeals
    • April 13, 1992
    ...458 584 N.Y.S.2d 458 79 N.Y.2d 1003, 594 N.E.2d 952 People v. Lupo (Sal) Court of Appeals of New York Apr 13, 1992 Kaye, J. 179 A.D.2d 683, 579 N.Y.S.2d 112 App.Div. 2, Queens Denied ...

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