Opinion
December 23, 1994
Appeal from the Erie County Court, LaMendola, J.
Present — Green, J.P., Pine, Balio, Callahan and Boehm, JJ.
Judgment unanimously affirmed. Memorandum: We reject the contention of defendant that the evidence of the showup identification should have been suppressed. Defendant was identified by the victim as similar in height to and wearing the same clothing as the masked perpetrator of a robbery within 15 minutes of the commission of that crime and one-quarter mile from the crime scene. Although defendant was handcuffed when identified, given the proximity of the identification procedure to the time and place of the crime, "`there was no constitutional infirmity'"; the showup was "within the permissible boundaries of the governing legal principles" (People v Duuvon, 77 N.Y.2d 541, 544; see, People v Brnja, 50 N.Y.2d 366; People v Hendrick, 192 A.D.2d 1100, 1101, lv denied 82 N.Y.2d 755; People v Hunt, 187 A.D.2d 981, 982, lv denied 81 N.Y.2d 887).
The contention of defendant that the prosecutor's remarks on summation deprived him of due process has not been preserved for review (see, CPL 470.05), and we decline to address it as a matter of discretion in the interest of justice (see, CPL 470.15 [a]).
Finally, the contention of defendant that his sentence is harsh or excessive is without merit.