People v. Smith , 484 N.Y.S.2d 920 ( 1985 )

Appeal by defendant from a judgment of the Supreme Court, Kings County (Bernstein, J.), rendered May 7, 1982, convicting him of murder in the second degree and robbery in the first degree, upon a jury verdict, and imposing sentence.

Judgment affirmed.

The court’s refusal to recuse itself after having determined the inappropriateness of the proposed plea agreement did not deprive defendant of a fair trial. (United States v Gallington, 488 F2d 637, cert denied 416 US 907.)

The court, after suppressing the eyewitness’ lineup identification, properly admitted into evidence his in-court identification of defendant, on the basis that he had an independent source for his in-court identification. (Manson v Brathwaite, 432 US 98; Neil v Biggers, 409 US 188.)

As defendant had never previously raised the arguments he is presently asserting on this appeal regarding the admissibility of his confession and the existence of probable cause for his arrest, these issues have not been preserved for review as a matter of law. (People v Jenkins, 47 NY2d 722; People v Tutt, 38 NY2d 1011; People v Ward, 95 AD2d 233; People v Jones, 81 AD2d 22.) We decline to address them in the interest of justice.

Any possible error which might have occurred when the court denied defendant’s motion to sever was rendered harmless by the overwhelming proof of his guilt supplied not only by the testimony of the prosecution’s witnesses at trial, but by defendant’s own admission of guilt. (People v Crimmins, 36 NY2d 230.) Mollen, P. J., Titone, Thompson and Bracken, JJ., concur.