| People v Stewart |
| 2015 NY Slip Op 05388 [129 AD3d 1700] |
| June 19, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vAnthony Stewart, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Christine M. Cook of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Maria Maldonado of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (William D. Walsh, J.),rendered August 29, 2011. The judgment convicted defendant, upon a jury verdict, ofrobbery in the first degree.
It is hereby ordered that the case is held, the decision is reserved and the matter isremitted to Onondaga County Court for further proceedings in accordance with thefollowing memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of robbery in the first degree (Penal Law § 160.15 [4]). Contrary todefendant's contention, County Court did not err in refusing to suppress the showupidentification of defendant by the victim. The transcript of the suppression hearingestablishes that the victim saw defendant three days after the robbery and contacted thepolice after going to a friend's house. The police transported the victim back to thelocation where he saw defendant, and the victim identified him. Under the circumstances,the showup identification was merely confirmatory, and "[n]o possibility ofsuggestiveness was created by the police conduct in arranging the confirmation"(People v Dade, 187 AD2d 959, 960 [1992], lv denied 81 NY2d 838[1993]; see People v McCray, 298 AD2d 203, 204 [2002], lv denied 99NY2d 583 [2003]; People v Anderson, 260 AD2d 387, 387-388 [1999], lvdenied 93 NY2d 922, 965 [1999]). Defendant failed to preserve for our review hisfurther contention that the evidence established that he did not possess a loaded weaponinasmuch as he raises that affirmative defense for the first time on appeal (seePenal Law § 160.15 [4]; People v Gordon, 92 AD3d 580, 580-581 [2012], lvdenied 19 NY3d 864 [2012]; People v Williams, 15 AD3d 244, 245 [2005], lvdenied 5 NY3d 771 [2005]), and we decline to exercise our power to review it as amatter of discretion in the interest of justice (see CPL 470.15 [6] [a]).
We agree with defendant, however, that the court erred in failing to determinewhether he should be afforded youthful offender status (see People v Rudolph, 21NY3d 497, 501 [2013]). Defendant was convicted of an armed felony offense, andthe court therefore was required "to determine on the record whether the defendant is aneligible youth by considering the presence or absence of the factors set forth in CPL720.10 (3) . . . [and] make such a determination on the record" (People vMiddlebrooks, 25 NY3d 516, 527 [2015]).Inasmuch as the court failed to do so here, we hold the case, reserve decision, and remitthe matter to County Court to make and state for the record "a determination of whetherdefendant is a youthful offender" (Rudolph, 21 NY3d at 503).
All concur, Fahey, J., not participating. Present—Centra, J.P., Fahey, Lindley,Sconiers and Whalen, JJ.