| People v Diaz |
| 2011 NY Slip Op 03260 [83 AD3d 958] |
| April 19, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v AngelDiaz, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Hae Jin Liu, Lois Cullen Valerio, andRichard Longworth Hecht of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Neary,J.), rendered December 5, 2007, convicting him of assault in the second degree, criminalpossession of a weapon in the second degree, criminal possession of a weapon in the thirddegree, and reckless endangerment in the first degree, upon a jury verdict, and imposingsentence. The appeal brings up for review the denial, after a hearing, of that branch of thedefendant's omnibus motion which was to suppress identification testimony.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, his detention and arrest by the police were supportedby information provided by eyewitnesses to the subject shooting, information obtained from anidentified citizen informant which was corroborated by police observation, and the identificationof the defendant as the shooter from a photo array by three eyewitnesses (see People vMartinez, 80 NY2d 444, 446-447 [1992]; People v Brito, 59 AD3d 1000 [2009]; People v Warren,276 AD2d 505, 505-506 [2000]; People v Farr, 262 AD2d 580, 580-581 [1999]).Furthermore, even if the police action had been improper, the identifications from the photo arraywere not an exploitation of any antecedent illegality, as the defendant's photograph was obtainedfrom a source independent of the alleged unlawful conduct (see People v Pleasant, 54NY2d 972, 974 n [1981], cert denied 455 US 924 [1982]; see also People v Tolentino, 14 NY3d382, 384-388 [2010]), and the hearing court determined that the photo array identificationprocedure was not unduly suggestive and did not require suppression of the witnesses' in-courtidentification testimony.
The Supreme Court did not deprive the defendant of the right to represent himself, as thedefendant never made a clear and unequivocal request to proceed pro se (see People v Gillian, 8 NY3d 85,88 [2006]; see generally People v McIntyre, 36 NY2d 10, 17 [1974]). In any event, anyrequest was abandoned, since the defendant's subsequent conduct evinced his satisfaction withcounsel (see People v Gillian, 8 NY3d at 88; People v Scivolette, 40 AD3d 887, 887-888 [2007]; People v Pena, 7 AD3d 259, 260[2004]; People v Hirschfeld, 282 AD2d 337, 339 [2001], cert denied 534 US1082 [2002]).
Finally, the Supreme Court did not improvidently exercise its discretion in denying the [*2]defendant's application to present certain proposed alibi testimony.The defendant's alibi notice was untimely served, and the defendant did not establish good causefor his failure to timely notify the prosecution of the proffered alibi evidence (see CPL250.20 [1]; People v Reyes, 49AD3d 565, 566 [2008]; People vJiminez, 36 AD3d 962, 964 [2007]; People v Louisias, 29 AD3d 1017, 1019 [2006]; People vDelarosa, 287 AD2d 734, 735 [2001]). Mastro, J.P., Florio, Belen and Chambers, JJ., concur.