Opinion
April 14, 1989
Appeal from the Monroe County Court, Marks, J.
Present — Dillon, P.J., Callahan, Doerr, Green and Davis, JJ.
Judgment unanimously affirmed. Memorandum: On appeal from a jury verdict convicting him of third degree robbery and related crimes, defendant raises several claims but none requires reversal. Defendant's arrest was based upon probable cause. Defendant matched the victim's detailed description of her assailant in most material respects and, upon seeing the police car back up, defendant ran away from an area close to the crime scene shortly after the crime occurred (see, People v. Bigelow, 66 N.Y.2d 417, 423). Thus, the police had information sufficient to support a reasonable belief that an offense had been committed and that defendant was the perpetrator (see, People v Carrasquillo, 54 N.Y.2d 248, 254). The showup was conducted shortly after the crime and close to the scene of the crime (see, People v. Love, 57 N.Y.2d 1023, 1024-1025). The court's finding that the showup was not impermissibly suggestive must be accorded great weight and is supported by the record (see, People v. Prochilo, 41 N.Y.2d 759, 761), notwithstanding that defendant was in handcuffs and in the presence of police when the identification was made (see, People v. Johnson, 102 A.D.2d 616, 627, lv denied 63 N.Y.2d 776; People v. James, 110 A.D.2d 1037, 1038; People v. Thomas, 105 A.D.2d 1098). Defense counsel consented to the court's substitution of an alternate juror. The substitution was not an abuse of the court's broad discretion in any event (see, CPL 270.35; People v. Page, 72 N.Y.2d 69, 73; People v. Pierce, 97 A.D.2d 904, 905). Defendant's sentence is not excessive given the nature of the crimes and his prior criminal record. Defendant's claim of prosecutorial misconduct in cross-examination of an alibi witness was not preserved for review (see, People v. Ford, 69 N.Y.2d 775, 776, rearg denied 69 N.Y.2d 985) and we decline to reach it in the interest of justice.