Opinion
KA 99-2037
February 1, 2002.
Appeal from a judgment of Supreme Court, Erie County (Buscaglia, J.), entered December 22, 1998, convicting defendant after a jury trial of robbery in the second degree.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT B. HALLBORG, JR., OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (JOSEPH KILBRIDGE OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PINE, J.P., SCUDDER, KEHOE, BURNS, AND GORSKI, JJ.
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting him of robbery in the second degree (Penal Law § 20.00, 160.10). He contends that Supreme Court should have granted his CPL 330.30 motion to set aside the verdict in its entirety on the ground that the complainant's trial testimony so undermined the Wade determination that the court sua sponte should have reconsidered its denial of defendant's motion to suppress the identification testimony as the product of an impermissibly suggestive showup. That contention lacks merit. Defendant did not move to reopen the Wade hearing ( see, People v. DeBaptiste, 286 A.D.2d 341; People v. Diaz, 194 A.D.2d 688, 689, lv denied 82 N.Y.2d 893; People v. Sumpter, 192 A.D.2d 628, 629, lv denied 81 N.Y.2d 1081). Further, a suppression determination must be based solely on the evidence presented at the suppression hearing, and thus the court could not reconsider its Wade determination based on the complainant's trial testimony ( see, People v. Riley, 70 N.Y.2d 523, 532; People v. Gonzalez, 55 N.Y.2d 720, 721-722, rearg denied 55 N.Y.2d 1038, cert denied 456 U.S. 1010; People v. Diaz, supra, at 689). In any event, the showup was not rendered impermissibly suggestive as a result of the handcuffing of defendant ( see, People v. Duuvon, 77 N.Y.2d 541, 545; People v. Howington, 284 A.D.2d 1009; People v. Aquino, 202 A.D.2d 261, 261-262, lv denied 83 A.D.2d 963; People v. Lewis, 123 A.D.2d 716, 718-719, lv denied 69 N.Y.2d 830), the sequence in which the suspects were separately shown to the complainant, or the fact that police elicited the complainant's identification of the shotgun before the complainant viewed defendant in the showup ( see, People v. Aquino, supra, at 261-262).
Defendant was acquitted of robbery in the second degree under Penal Law § 160.10 (2) (a), and thus we do not consider his further contention that the evidence is legally insufficient with respect to the physical injury element of that crime. The sentence is not unduly harsh or severe.