| People v Miller |
| 2009 NY Slip Op 09680 [68 AD3d 1135] |
| December 22, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v TitusMiller, Appellant. |
—[*1] Daniel M. Donovan, Jr., District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart andMichael Shollar of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Richmond County(Rooney, J.), rendered July 27, 2007, convicting him of robbery in the first degree, upon a juryverdict, and imposing sentence. The appeal brings up for review the denial, after a hearing(Rienzi, J.), of that branch of the defendant's omnibus motion which was to suppressidentification testimony.
Ordered that the judgment is affirmed.
The evidence at a suppression hearing established that the showup identification of thedefendant took place within 15 minutes of the crime and less than one-half mile from the crimescene, and was conducted for the reasonable purpose of securing a prompt and reliableidentification. As such, the showup was not unduly suggestive and, therefore, the hearing courtproperly denied that branch of the defendant's omnibus motion which was to suppress theidentification testimony (see People v Ortiz, 90 NY2d 533 [1997]; People v Johnson,81 NY2d 828 [1993]).
The Supreme Court properly denied the defendant's motion to set aside the verdict pursuantto CPL 330.30 because it was based upon facts which were dehors the record (see People vHerrington, 194 AD2d 379 [1993]). "The appropriate vehicle . . . to allegeineffective assistance of counsel grounded in allegations referring to facts outside of the trialrecord is pursuant to CPL 440.10, where matters dehors the record may be considered"(People v Bagarozy, 182 AD2d 565, 566 [1992]).
The defendant's contention that, as applied to this case, the predicate violent felony statuteresults in a grossly disproportionate sentence is unpreserved for appellate review, and is, in anyevent, without merit (see People v Mastropietro, 198 AD2d 443 [1993]). Moreover, thesentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]). Mastro,J.P., Santucci, Belen and Chambers, JJ., concur.