| People v Scott |
| 2011 NY Slip Op 05107 [85 AD3d 827] |
| June 7, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Lawrence Scott, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, JohnnetteTraill, and Emil Bricker of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lasak, J.),rendered October 2, 2008, convicting him of robbery in the first degree (two counts), robbery inthe second degree, and criminal possession of stolen property in the third degree(two counts), upon a jury verdict, and imposing sentence. The appeal brings up for review thedenial, after a hearing (Griffin, J.), of that branch of the defendant's omnibus motion which wasto suppress identification evidence.
Ordered that the judgment is affirmed.
Based upon the papers in support of and in opposition to that branch of the defendant'somnibus motion which was to suppress identification evidence, the Supreme Court properlydetermined that the defendant was not entitled to a Wade hearing (see United States vWade, 388 US 218 [1967]) on the ground that no identification procedure had beenconducted by law enforcement authorities (see People v Rios, 156 AD2d 397 [1989];cf. People v Dixon, 85 NY2d 218 [1995]). To the extent that the defendant relies uponevidence subsequently adduced at a Mapp/Dunaway hearing (see Mapp vOhio, 367 US 643 [1961]; Dunaway v New York, 442 US 200 [1979]) and at trial,his contention is unpreserved for appellate review since he did not seek to reopen his request fora Wade hearing based upon that evidence (see People v Clanton, 69 AD3d 754, 754 [2010]).
The defendant correctly contends that the prosecutor improperly cross-examined him abouthis silence when he was apprehended by the police (see People v Wright, 40 AD3d 1021 [2007]; People v Thompson, 34 AD3d852 [2006]). The error, however, was harmless beyond a reasonable doubt in that theevidence of the defendant's guilt, without reference to the error, was overwhelming, and there isno reasonable possibility that the error might have contributed to his conviction (see People vCrimmins, 36 NY2d 230, 237 [1975]; People v Rush, 44 AD3d 799, 800 [2007]).
The defendant's claim that the statutory procedure underlying his adjudication and sentencingas a persistent violent felony offender was unconstitutional is without merit (see Apprendi vNew Jersey, 530 US 466 [2000]; People v Leon, 10 NY3d 122, 126 [2008], cert denied 554US 926 [2008]; People v Terry, 78 [*2]AD3d 1207[2010]; People v Alvarez, 76 AD3d1098, 1099 [2010], lv granted 16 NY3d 827 [2011]). Prudenti, P.J., Angiolillo,Florio and Cohen, JJ., concur.