Opinion
2015-06-19
The PEOPLE of the State of New York, Respondent v. Anthony STEWART, Defendant–Appellant.
Frank H. Hiscock Legal Aid Society, Syracuse (Christine M. Cook of Counsel), for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (Maria Maldonado of Counsel), for Respondent.
Frank H. Hiscock Legal Aid Society, Syracuse (Christine M. Cook of Counsel), for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (Maria Maldonado of Counsel), for Respondent.
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, SCONIERS, AND WHALEN, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a jury verdict of robbery in the first degree (Penal Law § 160.15 [4] ). Contrary to defendant's contention, County Court did not err in refusing to suppress the showup identification of defendant by the victim. The transcript of the suppression hearing establishes that the victim saw defendant three days after the robbery and contacted the police after going to a friend's house. The police transported the victim back to the location where he saw defendant, and the victim identified him. Under the circumstances, the showup identification was merely confirmatory, and “[n]o possibility of suggestiveness was created by the police conduct in arranging the confirmation” ( People v. Dade, 187 A.D.2d 959, 960, 591 N.Y.S.2d 122, lv. denied 81 N.Y.2d 838, 595 N.Y.S.2d 737, 611 N.E.2d 776; see People v. McCray, 298 A.D.2d 203, 204, 748 N.Y.S.2d 722, lv. denied 99 N.Y.2d 583, 755 N.Y.S.2d 719, 785 N.E.2d 741; People v. Anderson, 260 A.D.2d 387, 387–388, 689 N.Y.S.2d 153, lv. denied93 N.Y.2d 922, 693 N.Y.S.2d 505, 715 N.E.2d 508; 93 N.Y.2d 965, 695 N.Y.S.2d 51, 716 N.E.2d 1096 ). Defendant failed to preserve for our review his further contention that the evidence established that he did not possess a loaded weapon inasmuch as he raises that affirmative defense for the first time on appeal ( see§ 160.15[4]; People v. Gordon, 92 A.D.3d 580, 580–581, 938 N.Y.S.2d 554, lv. denied 19 N.Y.3d 864, 947 N.Y.S.2d 412, 970 N.E.2d 435; People v. Williams, 15 A.D.3d 244, 245, 789 N.Y.S.2d 155, lv. denied 5 N.Y.3d 771, 801 N.Y.S.2d 266, 834 N.E.2d 1275), and we decline to exercise our power to review it as a matter of discretion in the interest of justice ( seeCPL 470.15[6][a] ).
We agree with defendant, however, that the court erred in failing to determine whether he should be afforded youthful offender status ( see People v. Rudolph, 21 N.Y.3d 497, 501, 974 N.Y.S.2d 885, 997 N.E.2d 457). Defendant was convicted of an armed felony offense, and the court therefore was required “to determine on the record whether the defendant is an eligible youth by considering the presence or absence of the factors set forth in CPL 720.10(3) ... [and] make such a determination on the record” (People v. Middlebrooks, ––– N.Y.3d ––––, ––––, ––– N.Y.S.3d ––––, ––– N.E.3d –––– [June 11, 2015] ). Inasmuch as the court failed to do so here, we hold the case, reserve decision, and remit the matter to County Court to make and state for the record “a determination of whether defendant is a youthful offender” ( Rudolph, 21 N.Y.3d at 503, 974 N.Y.S.2d 885, 997 N.E.2d 457).
It is hereby ORDERED that the case is held, the decision is reserved and the matter is remitted to Onondaga County Court for further proceedings.