| People v Nunez |
| 2008 NY Slip Op 07935 [55 AD3d 756] |
| October 14, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JonathanNunez, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Sharon Y. Brodt,and Howard McCallum of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Gavrin, J.),rendered March 22, 2007, convicting him of robbery in the first degree, burglary in the first degree,robbery in the second degree, burglary in the second degree, and unlawful imprisonment in the seconddegree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after ahearing, of those branches of the defendant's omnibus motion which were to suppress identificationtestimony and his statements to law enforcement officials.
Ordered that the judgment is affirmed.
In challenging the hearing court's determination denying suppression of his statements to lawenforcement officials, the defendant relies upon trial testimony. However, the "defendant may not relyupon trial testimony to challenge a suppression issue where, as here, he failed to request a reopening ofthe suppression hearing" (People v Maxis,50 AD3d 922, 923 [2008]; see People v Abrew, 95 NY2d 806, 808 [2000]; People v Rice, 39 AD3d 567 [2007];People v Crosby, 33 AD3d 719[2006]). The record supports the hearing court's determination that the police had probable cause toarrest the defendant based on the information furnished by a named private citizen (see People vChipp, 75 NY2d 327, 339-340 [1990], cert denied 498 US 833 [1990]; People v Nealy, 32 AD3d 400, 401[2006]; People v Nieves, 26 AD3d519, 520 [2006]; People v Pagan, 184 AD2d 738 [1992]; People v Grams, 166AD2d 717 [1990]).
The defendant has not preserved for appellate review his contention that the trial court erred inallowing into evidence testimony regarding a witness's pretrial identification of him from a computerphotographic array on the ground that the People failed to serve proper notice (see CPL [*2]710.30 [1] [b]). In any event, any error in admitting such testimony washarmless (see People v Johnson, 57 NY2d 969, 970 [1982]; People v Herndon, 47 AD3d 837, 838[2008]; People v Peterkin, 245 AD2d 1050 [1997]; People v Manson, 176 AD2d294, 295 [1991]). Prudenti, P.J., Santucci, McCarthy and Chambers, JJ., concur.