Opinion
2014-04656 Ind. No. 563/13.
02-24-2016
The PEOPLE, etc., respondent, v. Derick HERNANDEZ, appellant.
Robert J. Rountry, Freeport, N.Y., for appellant. Madeline Singas, District Attorney, Mineola, N.Y. (Ilisa T. Fleischer of counsel; Konstantinos Litourgis on the brief), for respondent.
Robert J. Rountry, Freeport, N.Y., for appellant.
Madeline Singas, District Attorney, Mineola, N.Y. (Ilisa T. Fleischer of counsel; Konstantinos Litourgis on the brief), for respondent.
Opinion
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Donnino, J.), rendered April 25, 2014, convicting him of robbery in the third degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress identification evidence.
ORDERED that the judgment is affirmed.
The hearing court properly denied that branch of the defendant's omnibus motion which was to suppress identification evidence. The complainant's pretrial identification of the defendant from a photograph he discovered on social media through the use of his own smartphone was not the product of a police-arranged procedure (see Matter of Felix D., 30 A.D.3d 598, 599, 818 N.Y.S.2d 142; Matter of Gabriel A., 12 A.D.3d 666, 667, 785 N.Y.S.2d 512).
Moreover, since the defendant did not join in the codefendants' request that the People be compelled to produce the complainant as a witness at the suppression hearing, his argument that the complainant should have been called at the hearing is unpreserved for appellate review (see CPL 470.052; People v. Kelly, 200 A.D.2d 440, 441, 607 N.Y.S.2d 240). In any event, the People were not required to call the complainant at the suppression hearing based on the defendant's speculative claim that the actions of a police witness somehow tainted the complainant's identification of him (see People v. Velez, 39 A.D.3d 38, 44, 829 N.Y.S.2d 209; People v. Kidd, 247 A.D.2d 269, 269, 667 N.Y.S.2d 907).
Finally, we note that on appeal we may not consider trial testimony in evaluating a suppression ruling (see People v. Jerry, 126 A.D.3d 1001, 1002, 4 N.Y.S.3d 317).
BALKIN, J.P., HALL, ROMAN and MALTESE, JJ., concur.