Opinion
March 28, 1996
Appeal from the Supreme Court, Bronx County (William Donnino, J.).
Defendant abandoned his claim that identification evidence by one of the eyewitnesses should have been precluded when he conceded that he received oral notice of a photo identification at his Criminal Court arraignment ( People v Gillard, 215 A.D.2d 216, 217, lv denied 86 N.Y.2d 794), and we decline to review it in the interest of justice. If we were to review the claim, we would find that defendant waived it by moving to suppress the identification ( see, People v Brown, 224 A.D.2d 226), and also that the notice given at the Criminal Court arraignment was sufficiently specific.
Since there was a substantial change in the condition of a window used by one of the eyewitnesses, namely, the addition of an air conditioner and the partial destruction of the window bars, the court properly exercised its discretion when it denied the jury's request during deliberations to look through the window ( People v White, 67 A.D.2d 571, revd on other grounds 53 N.Y.2d 721).
We find no abuse of discretion in sentencing, in light of the brutal nature of the crime, which defendant committed while on probation.
Concur — Sullivan, J.P., Rosenberger, Ross, Williams and Tom, JJ.