Opinion
April 5, 1985
Appeal from the Monroe County Court, Celli, J.
Present — Dillon, P.J., Callahan, Denman, Green and Schnepp, JJ.
Judgment unanimously affirmed. Memorandum: On appeal from a judgment of conviction for burglary in the third degree (Penal Law § 140.20) defendant argues, inter alia, that the People failed to satisfy their burden of proof at the Wade hearing ( United States v. Wade, 388 U.S. 218) because the only person who testified regarding the pretrial showup was the eyewitness of the burglary. By not raising this issue within the context of his motion to suppress, defendant has failed to preserve the issue for review ( see, CPL 470.05; People v. Gonzalez, 55 N.Y.2d 887, 888; People v. Jennings, 94 A.D.2d 802, 803). The claim has no merit in any event. Although the People have the burden of going forward in the first instance ( see, People v. Berrios, 28 N.Y.2d 361, 367; People v. Sutton, 47 A.D.2d 455, 459), neither statute nor case law requires the People to call particular witnesses, such as a police officer who participated in the identification. Here, the eyewitness testified that, while looking out her kitchen window, she noticed the defendant and a companion break into a neighboring residence and thereafter hide behind a car nearby. She called the police, described the two males, and informed the police where the suspects were hiding. The police arrived on the scene immediately and noticed a broken door at the subject residence. As one officer approached the car, the defendant, who matched the earlier description, jumped up and ran and was eventually captured and arrested. The police returned with the defendant to the home of the eyewitness. While standing in her front doorway, she positively identified the defendant, who was standing outside near the police car. Based on this testimony of the eyewitness, the People clearly satisfied their burden of going forward in the first instance ( see, People v. Sutton, supra).
On this record, the showup was not unduly suggestive ( see, People v. Blake, 35 N.Y.2d 331, 337). The possibility that the police may have referred to the defendant as a "suspect" ( see, People v. Logan, 25 N.Y.2d 184, 192, cert denied 396 U.S. 1020) or that the defendant may have been handcuffed ( see, People v Thomas, 105 A.D.2d 1098; People v. Johnson, 102 A.D.2d 616, 617, lv denied 63 N.Y.2d 776) does not, without more, render the showup unnecessarily suggestive; nor does the fact that the eyewitness could observe the defendant from a vantage point where he could not see her ( see, People v. Brown, 20 N.Y.2d 238, 242-243, cert denied 390 U.S. 928).
Defendant also argues that the pretrial identification should not have been admitted at trial because it was the product of an arrest unsupported by probable cause. There is no merit to this claim. The police, responding to a call of a burglary in progress, confirmed their information upon arrival at the scene. They observed the defendant, who matched the earlier description of one of the suspects, jump up and run. Thus, the officer clearly had reasonable cause to believe that the defendant committed a crime ( see, CPL 140.10 [b]; People v. Valo, 92 A.D.2d 1004, 1005; People v. Rivera, 67 A.D.2d 867).
Defendant's claim that the verdict of guilty of burglary in the third degree was repugnant to the verdict of not guilty of grand larceny in the third degree and petit larceny was not preserved for review ( see, People v. Satloff, 56 N.Y.2d 745, 746; People v McDavis, 97 A.D.2d 302, 305) and is without merit in any event. The crimes have different elements ( cf. People v. Tucker, 55 N.Y.2d 1, 6, rearg denied 55 N.Y.2d 1039). Conviction for burglary only requires proof of larcenous intent not proof of actual commission of a larceny ( see, People v. Barnes, 50 N.Y.2d 375, 379; People v. Dodson, 96 A.D.2d 1116, 1117; see also, People v Clark, 70 A.D.2d 683). On this record we conclude that the verdict was amply supported by the evidence.