| People v Hernandez |
| 2016 NY Slip Op 01346 [136 AD3d 1055] |
| February 24, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Derick Hernandez, Appellant. |
Robert J. Rountry, Freeport, NY, for appellant.
Madeline Singas, District Attorney, Mineola, NY (Ilisa T. Fleischer of counsel;Konstantinos Litourgis on the brief), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County(Donnino, J.), rendered April 25, 2014, convicting him of robbery in the third degree,upon a jury verdict, and imposing sentence. The appeal brings up for review the denial,after a hearing, of that branch of the defendant's omnibus motion which was to suppressidentification evidence.
Ordered that the judgment is affirmed.
The hearing court properly denied that branch of the defendant's omnibus motionwhich was to suppress identification evidence. The complainant's pretrial identificationof the defendant from a photograph he discovered on social media through the use of hisown smartphone was not the product of a police-arranged procedure (see Matter of Felix D., 30AD3d 598, 599 [2006]; Matter of Gabriel A., 12 AD3d 666, 667 [2004]).
Moreover, since the defendant did not join in the codefendants' request that thePeople be compelled to produce the complainant as a witness at the suppression hearing,his argument that the complainant should have been called at the hearing is unpreservedfor appellate review (see CPL 470.05 [2]; People v Kelly, 200 AD2d 440,441 [1994]). In any event, the People were not required to call the complainant at thesuppression hearing based on the defendant's speculative claim that the actions of apolice witness somehow tainted the complainant's identification of him (see People v Velez, 39 AD3d38, 44 [2007]; People v Kidd, 247 AD2d 269, 269 [1998]).
Finally, we note that on appeal we may not consider trial testimony in evaluating asuppression ruling (see People vJerry, 126 AD3d 1001, 1002 [2015]). Balkin, J.P., Hall, Roman and Maltese, JJ.,concur.