| People v Hamdam |
| 2009 NY Slip Op 00403 [58 AD3d 752] |
| January 20, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JamilHamdam, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Victor Barall, andSteven A. Mann of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Feldman,J.), rendered September 15, 2005, convicting him of burglary in the second degree and robberyin the third degree, upon a jury verdict, and sentencing him, as a second felony offender, to adeterminate term of imprisonment of 15 years on the burglary count and a concurrentindeterminate term of imprisonment of 3½ to 7 years on the robbery count. The appealbrings up for review the denial, after a hearing, of that branch of the defendant's omnibus motionwhich was to suppress identification testimony.
Ordered that the judgment is modified, as a matter of discretion in the interest of justice, byvacating the sentence imposed; as so modified, the judgment is affirmed, and the matter isremitted to the Supreme Court, Kings County, for resentencing in accordance herewith.
Contrary to the defendant's contentions, the Supreme Court properly permitted a prosecutionwitness to testify regarding defense counsel's presence at the lineup observed by the robberyvictim and counsel's statements indicating that he was satisfied with the composition of thelineup (see People v Foulks, 143 AD2d 1038 [1988]).
The defendant's present contentions regarding suppression of evidence of the showupidentification made by the burglary victim are unpreserved for appellate review (see CPL470.05 [2]; [*2]People v Foster, 187 AD2d 401 [1992]).In any event, the hearing testimony supports the hearing court's determination that theidentification was sufficiently reliable to submit to the jury (see People v Marte, 52 AD3d 737 [2008]; People v Darnell,146 AD2d 583 [1989]; People v Blackman, 110 AD2d 596 [1985]). The evidence atthe hearing also shows an independent source for the burglary victim's in-court identification ofthe defendant (see People v Wilson,5 NY3d 778, 780 [2005]; People v Golliver, 132 AD2d 618 [1987]).
The defendant's trial attorney provided meaningful representation (see People vBenevento, 91 NY2d 708 [1998]; People v Baldi, 54 NY2d 137 [1981]).
While the defendant's contention that he was improperly adjudicated a second felonyoffender is unpreserved for appellate review (see CPL 470.05 [2]), we consider thematter in the exercise of our interest of justice jurisdiction (see People v Fusillo, 94AD2d 802 [1983]). The sentencing court adjudicated the defendant a second felony offender(see Penal Law § 70.06) absent any indication of compliance with the proceduralrequirements of CPL 400.21, or any showing that the defendant was given notice and anopportunity to be heard (cf. People v Bouyea, 64 NY2d 1140 [1985]; People vAlston, 289 AD2d 339 [2001]). We therefore remit the matter to the Supreme Court, KingsCounty, for resentencing in accordance with the mandates of CPL 400.21. Rivera, J.P., Santucci,Carni and Dickerson, JJ., concur.