Opinion
September 23, 1985
Appeal from the County Court, Nassau County (Ain, J.).
Judgments affirmed.
Defendant's guilt of burglary in the third degree was proved beyond a reasonable doubt. The weight to be accorded the identification testimony of the three witnesses who placed the defendant in the subject office building on the date in question was an issue for the jury's determination. The jury evidently credited this testimony. Its determination that the facts proved excluded to a moral certainty every reasonable hypothesis of innocence was rational and will not be disturbed on appeal.
Moreover, the photographic identification procedures utilized in connection with the burglary charge were not suggestive in any respect. The police officers' unintentional destruction of the physical description forms filled out by the witnesses did not frustrate defendant's right to cross-examine these witnesses (see, People v Paranzino, 40 N.Y.2d 1005; People v Caple, 106 A.D.2d 511).
With respect to defendant's conviction of grand larceny in the third degree, his contention that the police did not have probable cause to arrest him lacks merit. Defendant fit the description relayed over the police radio and was spotted one block away from the scene of the theft, minutes after it occurred. When considered with defendant's subsequent evasive behavior, the police clearly had probable cause to effectuate defendant's arrest (see, People v Lypka, 36 N.Y.2d 210). Additionally, the showup identification procedure, occurring less than 10 minutes after the crime occurred and only one block from the scene, was proper (see, People v Brnja, 50 N.Y.2d 366).
We have reviewed defendant's remaining contentions and find that they are without merit. Lazer, J.P., O'Connor, Weinstein and Niehoff, JJ., concur.