Opinion
November 18, 1992
Appeal from the Supreme Court, Erie County, Forma, J.
Present — Green, J.P., Lawton, Boehm, Fallon and Davis, JJ.
Judgment unanimously affirmed. Memorandum: We reject defendant's contention that Supreme Court erred in refusing to suppress evidence of defendant's identification made following a street corner showup held two days after the crime. The record supports the suppression court's finding that the complainant knew defendant from the neighborhood (see, People v Carter, 174 A.D.2d 988, lv denied 78 N.Y.2d 1010). Because of the identifying witness's familiarity with defendant, there is little or no risk that police suggestion could have led to misidentification (see, People v Collins, 60 N.Y.2d 214, 219; People v Tas, 51 N.Y.2d 915, 916). The identification was confirmatory (see, People v Rodriguez, 79 N.Y.2d 445, 450). The suppression court's alternative finding that the showup was not unduly suggestive is also supported by the record. Here, the police were not responsible for arranging the showup. The complainant telephoned the police to advise them of defendant's whereabouts. The police involvement was limited to transporting the complainant to that location. No possibility of suggestiveness was created by the police conduct in arranging the confirmation (see, People v Reeves, 156 A.D.2d 934, lv denied 75 N.Y.2d 969).
Because the jury's initial verdict improperly considered all the counts submitted, including the reckless assault count charged in the alternative, the court properly instructed it to reconsider its verdict (see, CPL 310.50). On the whole, the instructions given by the court in directing the jury to reconsider its verdict on the first three counts were comprehensive and correct.
Viewing the evidence in the light most favorable to the People (see, People v Malizia, 62 N.Y.2d 755, 757, cert denied 469 U.S. 932), we conclude that it was legally sufficient to support defendant's conviction of criminal use of a firearm in the first degree (Penal Law § 265.09) and criminal possession of a weapon in the fourth degree (Penal Law § 265.01). Complainant's testimony that defendant was armed with a .22 caliber rifle is uncontradicted. Notwithstanding his further testimony that the rifle's grip had been sawed-off, there is a valid line of reasoning from which the jury could reasonably conclude that the rifle was intended to be shot from the shoulder (see, Penal Law § 265.00).
We have reviewed defendant's remaining contentions and find them to be without merit.