Opinion
March 7, 1988
Appeal from the Supreme Court, Kings County (Hellenbrand, J.).
Ordered that the judgment is affirmed.
The trial court did not err in admitting evidence concerning a robbery committed about 50 minutes before the crime charged herein. This evidence showed how the murder weapon was obtained and was an important link in the chain of evidence necessary to prove that the defendant had knowledge of his accomplices' plan to attempt the later robbery, which attempt resulted in a death (see, People v. Agront, 104 A.D.2d 821; see, People v Ventimiglia, 52 N.Y.2d 350, 362; People v. Molineux, 168 N.Y. 264).
Nor was it error to allow an in-court identification by the victim of the first robbery, notwithstanding that he saw a photograph of defendant while waiting to testify the morning of the trial. This viewing occurred accidentally and was not a police-arranged procedure (see, People v. Logan, 25 N.Y.2d 184, cert denied 396 U.S. 1020, rearg dismissed 27 N.Y.2d 733). Moreover, identity was not a seriously contested issue at the trial. Hence, had there been any suggestiveness, it would have been harmless (People v. Gissendanner, 48 N.Y.2d 543; People v Crimmins, 36 N.Y.2d 230; People v. Ingram, 110 A.D.2d 852, lv denied 66 N.Y.2d 615).
We further find without merit the defendant's claim that CPL 30.30, the statutory "speedy trial" provision, is unconstitutional because it exempts the homicide felonies from the six-month statutory time requirement otherwise applicable to the prosecution of felonies (CPL 30.30; Penal Law § 125.10 et seq.; see, People v. Mollette, 87 Misc.2d 236). Moreover, viewing the defendant's speedy trial claim under CPL 30.20 (see, e.g., People v. Taranovich, 37 N.Y.2d 442, 449; People v. Johnson, 38 N.Y.2d 271), we find nothing in the record that would support it or that would support the defendant's claim that his trial attorney's failure to bring a speedy trial motion deprived him of the effective assistance of counsel. Any other claim concerning the denial of the defendant's right either to a speedy trial or to the effective assistance of counsel, based on any matters outside the record, is reviewable only by way of a motion pursuant to CPL article 440.
We have considered the defendant's remaining contentions, including those raised in his pro se supplemental brief, and find them to be without merit. Lawrence, J.P., Rubin, Kooper and Spatt, JJ., concur.