| People v O'Neil |
| 2009 NY Slip Op 03753 [62 AD3d 727] |
| May 5, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v KeithO'Neil, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Margaret E. Mainusch and Cristin N.Connell of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Nassau County (Ayres, J.),rendered July 13, 2007, convicting him of burglary in the first degree (two counts), robbery inthe second degree (two counts), assault in the second degree, and criminal possession of aweapon in the fourth degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant improperly relies on testimony elicited at trial in support of his contentionthat the showup procedure at issue here was unduly suggestive. A suppression determinationmust be based on the evidence before the hearing court, and this Court is precluded fromreviewing trial testimony in determining whether the hearing court acted properly (see People v South, 47 AD3d 734,735 [2008]; People v Andujar, 267 AD2d 467 [1999]; People v Kendrick, 256AD2d 420 [1998]). Since the defendant did not move to reopen the hearing based on the trialtestimony, or move for a mistrial, the defendant's contention in this regard is not properly beforethis Court (see People v South, 47 AD3d at 735; People v DeBaptiste, 286 AD2d341 [2001]; People v Andujar, 267 AD2d at 467; People v Kendrick, 256 AD2dat 420).
The defendant's contention that the evidence was legally insufficient to establish his guilt is[*2]unpreserved for appellate review (see CPL 470.05[2]; People v Hawkins, 11 NY3d484 [2008]). In any event, viewing the evidence in the light most favorable to theprosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legallysufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon ourindependent review pursuant to CPL 470.15 (5), we are satisfied that the verdict of guilt was notagainst the weight of the evidence (seePeople v Romero, 7 NY3d 633 [2006]).
The defendant's remaining contentions are unpreserved for appellate review. Mastro, J.P.,Dillon, Dickerson and Leventhal, JJ., concur.