Opinion
February 17, 1998
Appeal from the Supreme Court, Bronx County (Denis Boyle, J., at suppression hearing; Eugene Oliver, J., at jury trial and sentence).
Since the People met their initial burden of coming forward to establish that the prompt, on-the-scene showup identification procedure was reasonable and not unduly suggestive (see, People v. Ortiz, 90 N.Y.2d 533, 538), they were not required to call the complainant at the suppression hearing based on defendant's speculative claim that the presence of backup officers somehow tainted the showup procedure (see, People v. Chipp, 75 N.Y.2d 327, 338, cert denied 498 U.S. 833). Furthermore, defendant made no specific request to call the complainant as a defense witness at the hearing, and defendant would not, under these facts, have been entitled to such relief (supra). The trial court properly denied defendant's motion to reopen the hearing based on the purported inconsistency between the complainant's trial testimony and the arresting officer's hearing testimony since defendant failed to offer any additional pertinent facts that would materially have affected the prior determinations (CPL 710.40; People v. Clark, 88 N.Y.2d 552, 555).
Since the record fails to support defendant's claim that certain alleged Rosario material ever existed (see, People v. Damaceno, 214 A.D.2d 464, lv denied 86 N.Y.2d 734), the court properly denied defendant's request for an adverse inference charge.
We have considered defendant's additional claims of error and find them to be without merit.
Concur — Milonas, J. P., Ellerin, Williams and Tom, JJ.