| People v Marte |
| 2008 NY Slip Op 05725 [52 AD3d 737] |
| June 17, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v NoelMarte, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Camille O'HaraGillespie of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Marrus, J.),rendered April 19, 2006, convicting him of assault in the first degree and robbery in the first degree,upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing,of that branch of the defendant's omnibus motion which was to suppress identification testimony.
Ordered that the judgment is affirmed.
The defendant's contention that the hearing court erred in refusing to suppress the identificationmade by the complainant on the ground that it was unreliable as a result of an unduly suggestive pretrialidentification procedure is without merit. "A pretrial identification procedure may be consideredimpermissibly suggestive and, therefore, violative of due process, only when it is the result of improperconduct by law enforcement officials" (People v Darnell, 146 AD2d 583, 583 [1989]).
As the hearing evidence established that there was no police involvement in the presentation of thedefendant's photograph to the complainant, and as no claim was made that the lineup procedure wassuggestive, the hearing court properly denied that branch of the defendant's motion which was tosuppress identification testimony (see Peoplev Stevens, 44 AD3d 882 [2007]; People v Butler, 286 AD2d 443 [2001] Peoplev Darnell, 146 AD2d at 583-584). Under the circumstances, the reliability of the complainant'sidentification of the defendant presented a question for the jury.
The defendant's contention that the sentencing court imposed consecutive sentences in [*2]violation of Penal Law § 70.25 (2) is without merit. The evidenceestablished that the defendant shot the victim after the robbery already had been completed. Therefore,although the convictions arose out of a single transaction, the robbery and assault were separate anddistinct acts and the imposition of consecutive sentences did not violate the statute (see People vLaureano, 87 NY2d 640 [1996]; Peoplev Bryant, 39 AD3d 768 [2007]; People v Murray, 299 AD2d 225 [2002]).
The defendant's contention that the sentencing court violated the principles of Apprendi v NewJersey (530 US 466 [2000]) by making a factual finding that the assault and the robbery wereseparate and distinct acts, a determination the defendant asserts should have been made by the jury, isunpreserved for appellate review (see Peoplev Cruz, 46 AD3d 567 [2007]; People v Pritchett, 29 AD3d 828 [2006]) and, in any event, is withoutmerit. The sentencing court did not engage in judicial fact-finding, but instead made "a legaldetermination based on facts already found by the jury" (People v Pritchett, 29 AD3d at 829).Mastro, J.P., Skelos, Lifson and Leventhal, JJ., concur.