Opinion
September 19, 1995
Appeal from the Supreme Court, New York County (Alvin Schlesinger, J.).
Defendant's claim that the police should have conducted a lineup rather than show him to the identifying witness while he was handcuffed is unpreserved for appellate review as a matter of law (CPL 470.05), and we decline to review it in the interest of justice. If we were to review it, we would find that the challenged showup, which took place some 45 minutes after the crime and some 120 blocks distant from the crime scene where defendant was apprehended after a car chase, was part of a single unbroken chain of exigent events ( People v. Duuvon, 77 N.Y.2d 541, 544-545). The exigency of the showup was not disproved by the fact that the codefendant was identified in a later lineup by another witness, since defendant's showup identification as the shooter by an eyewitness to the shooting itself was the first identification linking any of the three occupants of the fleeing car to the shooting. Nor was the showup procedure unduly suggestive ( see, People v Ford, 195 A.D.2d 298, lv denied 82 N.Y.2d 805; People v Stafford, 215 A.D.2d 212).
The trial court properly denied defendant's request for a Frye hearing ( Frye v United States, 293 F 1013) to determine the admissibility of expert testimony regarding the use of a scanning electron microscope to analyze the chemical composition of particles recovered from defendant's skin for the presence of lead indicative of gunshot residue. As defendant conceded at trial, scientists have been using the device for many years to identify the chemical composition of substances. The concerns defendant raised, including that the New York City police have only recently begun using the device, and that no samples were taken from the arresting officers, went to the weight, not the admissibility, of the expert testimony ( see, People v Wesley, 83 N.Y.2d 417, 429).
Concur — Sullivan, J.P., Rubin, Kupferman, Asch and Nardelli, JJ.