Opinion
February 25, 1985
Appeal from the Supreme Court, Queens County (Giaccio, J.).
Judgment affirmed.
Defendant was not improperly denied a Wade hearing in this case because the complainant's identification was made spontaneously and was not the product of an identification procedure arranged by the police ( see, e.g., People v Logan, 25 N.Y.2d 184, 193, cert denied 396 U.S. 1020; People v Parente, 104 A.D.2d 667; People v Dukes, 97 A.D.2d 445). Additionally, both the circumstantial evidence charge and the identification charge given by the trial court were sufficient ( see, People v Sanchez, 61 N.Y.2d 1022, 1024; People v Morris, 36 N.Y.2d 877; People v Whalen, 59 N.Y.2d 273; People v Smith, 100 A.D.2d 857, 858). Defendant's claim that the statute under which he was sentenced (Penal Law § 70.06) is unconstitutional is unpreserved and, in any case, is without merit ( see, People v Oliver, 63 N.Y.2d 973; People v Velasquez, 107 A.D.2d 726; People v Thompson, 105 A.D.2d 762; People v Cates, 104 A.D.2d 895). Defendant's claims that his Sandoval motion ( People v Sandoval, 34 N.Y.2d 371) should have been granted in its entirety and that the sentence imposed was excessive have been reviewed and likewise are without merit. Mangano, J.P., Bracken, Weinstein and Niehoff, JJ., concur.