Opinion
November 9, 1987
Appeal from the Supreme Court, Kings County (Goldman, J.).
Ordered that the judgment, as amended, is affirmed.
The defendant's contention that the complainant's identification was tainted by "important inconsistencies" and therefore should have been suppressed is based erroneously upon the complainant's trial testimony. As this court has recently noted "[t]he propriety of a denial of a motion to suppress `must be judged on the evidence before the suppression court'" (People v. King, 121 A.D.2d 471, lv denied 68 N.Y.2d 758, quoting from People v. Gonzalez, 55 N.Y.2d 720, 722, cert denied 456 U.S. 1010; see also, People v. Malone, 121 A.D.2d 657, lv denied 69 N.Y.2d 713; cf., People v. Dodt, 61 N.Y.2d 408). Accordingly, the defendant's argument in respect to alleged "inconsistencies" rests upon improper grounds and must be rejected (see, People v King, supra).
Further, our review of the record discloses that the showup identification procedure employed at bar was not unduly suggestive so as to violate due process. The showup — conducted at the scene of the defendant's apprehension only minutes after the robbery had been committed — did not expose the defendant to a substantial risk of irreparable misidentification (see, People v. James, 116 A.D.2d 663, lv denied 67 N.Y.2d 885; People v Arnette, 111 A.D.2d 861).
The defendant's contention that the court erred by denying his motions to sever his trial from that of his codefendant is without merit. The defendant's motions — made after commencement of trial — were untimely (see, People v. James, supra; People v Amato, 99 A.D.2d 495), and, in any event, we find that the trial court properly exercised its discretion in declining to grant them (see, People v. Bornholdt, 33 N.Y.2d 75, cert denied sub nom. Victory v. New York, 416 U.S. 905; People v. James, supra).
The evidence, when viewed in a light most favorable to the People, was legally sufficient to support the defendant's conviction (see, People v. Malizia, 62 N.Y.2d 755, cert denied 469 U.S. 932). Moreover, upon the exercise of our factual review power, we are satisfied that the evidence established defendant's guilt beyond a reasonable doubt and that the verdict was not against the weight of the evidence (CPL 470.15).
We have examined defendant's remaining contentions, including those in his pro se supplemental brief, and find them to be without merit (see, People v. James, supra, at 63). Weinstein, J.P., Rubin, Kooper and Sullivan, JJ., concur.