People v. Perrilla
| Citation | 247 A.D.2d 326,669 N.Y.S.2d 214 |
| Parties | 1998 N.Y. Slip Op. 2069 The PEOPLE of the State of New York, Respondent, v. Sergio PERRILLA, Defendant-Appellant. |
| Decision Date | 26 February 1998 |
| Court | New York Supreme Court Appellate Division |
Carolyn Pokorny, for respondent.
Erin B. Spiess, for defendant-appellant.
Judgment, Supreme Court, Bronx County (William Wallace III, J., on motion; Steven Barrett, J., at suppression hearing, trial and sentence), rendered December 15, 1994, convicting defendant, after a jury trial, of two counts of robbery in the first degree and one count of robbery in the second degree, and sentencing him, as a persistent violent felony offender, to concurrent terms of 16 years to life, unanimously affirmed.
We previously ordered (--- A.D.2d ----, 660 N.Y.S.2d 113) that this matter be held in abeyance pending a determination, upon remand to the trial court, as to whether probable cause existed for defendant's arrest. That court properly determined that probable cause existed. We also hold that despite the defective CPL 710.30(1) notices defendant was not entitled to preclusion and was not deprived of his right to a fair trial.
We find that the hearing court did not err in denying defendant's motion to preclude statement and identification evidence since defendant moved to suppress, thereby waiving the preclusion issue, and the court granted him a Wade/Huntley hearing and denied suppression, thus rendering the evidence admissible (CPL 710.30[3]; People v. Merrill, 87 N.Y.2d 948, 641 N.Y.S.2d 587, 664 N.E.2d 498; see also, People v. Kirkland, 89 N.Y.2d 903, 653 N.Y.S.2d 256, 675 N.E.2d 1208).
Since defendant never sought a continuance or similar relief, he failed to preserve his present claim that the defects in the notices caused him undue surprise and affected his strategy. Review in the interest of justice is unwarranted. Since it is uncontroverted that the statement was made to defendant's mother, not to a police officer, there was no entitlement to statement notice or a Huntley hearing (see, CPL 710.30(1)(a); People v. Eldridge, 213 A.D.2d 667, 624 N.Y.S.2d 197, lv. denied 86 N.Y.2d 781, 631 N.Y.S.2d 626, 655 N.E.2d 723; People v. King, 155 A.D.2d 480, 547 N.Y.S.2d 140, lv. denied 75 N.Y.2d 869, 553 N.Y.S.2d 301, 552 N.E.2d 880). The failure to state in the identification notice the site of the lineup and the correct officer who conducted the lineup was of little consequence since the notice need only provide defendant with sufficient...
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