| People v Gomez |
| 2009 NY Slip Op 01817 [60 AD3d 782] |
| March 10, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JugoGomez, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, JeanetteLifschitz, and Danielle Fenn of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lasak, J.),rendered November 9, 2006, convicting him of robbery in the first degree (two counts), robberyin the second degree (two counts), and criminal possession of stolen property in the fifth degree(two counts), upon a jury verdict, and imposing sentence. The appeal brings up for review thedenial, after a hearing (Blumenfeld, J.), of that branch of the defendant's omnibus motion whichwas to suppress identification testimony.
Ordered that the judgment is affirmed.
Police-arranged identifications, confrontations between a witness and a defendant whichhave come about at the deliberate direction of the police for the distinct purpose of identifyingthe perpetrator, implicate due process concerns (see People v Dixon, 85 NY2d 218, 223[1995]). Accidental showups, on the other hand, which result "from mere happenstance, such aswhere a witness is present in police headquarters for some purpose other than to effectuate anidentification, and by chance views and identifies a suspect who is being processed in anotherroom" (id. at 223), do not implicate due process concerns, as long as the spontaneousencounter was not caused by police misconduct or questionable police procedures (seePeople v Newball, 76 NY2d 587, 591 [1990]; People v Nunez, 216 AD2d 494, 495[1995]).
Following a reopened Wade hearing (see United States v Wade, 388 US 218[1967]), the trial court [*2]correctly determined that the precinctidentification at issue here was accidental and was not the result of police misconduct orquestionable police procedures (see People v Nunez, 216 AD2d 494, 495 [1995];People v Mitchell, 185 AD2d 249, 251 [1992]; People v Diaz, 155 AD2d 612,613 [1989]). Thus, the court properly denied that branch of the defendant's omnibus motionwhich was to suppress identification testimony.
Contrary to the People's assertion, the defendant preserved his claim for youthful offendertreatment by raising the issue at sentencing (see CPL 470.05 [2]; cf. People v Cox, 4 AD3d 481,482 [2004]; People v Warde, 45AD3d 879, 880 [2007]). However, contrary to the defendant's contention, the denial ofyouthful offender treatment was a provident exercise of the court's discretion (see CPL720.10 [3]; People v Meriwether,51 AD3d 823, 824 [2008]; People vSt. Hilaire, 48 AD3d 834, 835 [2008]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).Spolzino, J.P., Ritter, Miller and Balkin, JJ., concur.