| People v Austin |
| 2012 NY Slip Op 08142 [100 AD3d 1010] |
| November 28, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Alfonso Austin, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J.Caferri, and Merri Turk Lasky of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Holder, J.),rendered June 4, 2009, convicting him of assault in the first degree, assault in the second degree(two counts), resisting arrest, and false personation, upon a jury verdict, and imposing sentence.The appeal brings up for review the denial, after a hearing (Grosso, J.), of that branch of thedefendant's omnibus motion which was to suppress identification evidence.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the hearing court properly denied that branch of hisomnibus motion which was to suppress identification evidence. The hearing court correctlydetermined that the arresting officers initially had a "founded suspicion" of possible criminalactivity, creating a common-law right of inquiry, based on the fact that the defendant matched thesuspect's description and was located near the site of the subject criminal actions just minutesafter they occurred (People v Pines, 99 NY2d 525 [2002]; see People v De Bour,40 NY2d 210 [1976]). Further, the hearing court properly determined that the officers' level ofinquiry escalated to the level of reasonable suspicion based upon the defendant's conduct ofducking behind a building and then walking away from them quickly (see People v Pines,99 NY2d at 526). Once the police temporarily detained the defendant, they possessed probablecause to arrest him based upon, inter alia, a showup identification made by the complainant(see CPL 140.10 [1] [b]; People v De Bour, 40 NY2d at 223; People v Nunez, 82 AD3d 1128,1129 [2011]; People v Hill, 41AD3d 733, 734 [2007]).
The defendant's contention that the Supreme Court erred in permitting improper bolsteringtestimony is unpreserved for appellate review and, in any event, is without merit. The officer'stestimony did not constitute improper bolstering pursuant to People v Trowbridge (305NY 471 [1953]; see People v Williams, 216 AD2d 211, 212 [1995]; People vAcosta, 174 AD2d 363 [1991]).
The defendant's contention concerning an alleged Brady violation (see Brady vMaryland, 373 US 83 [1963]) is unpreserved for appellate review and, in any event, iswithout merit.
The defendant received the effective assistance of counsel (see People v Turner, 5[*2]NY3d 476, 480 [2005]; People v Baldi, 54 NY2d 137[1981]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).Florio, J.P., Leventhal, Austin and Roman, JJ., concur.