People v. Warner , 509 N.Y.S.2d 151 ( 1986 )

— Appeal by the defendant from a judgment of the County Court, Suffolk County (Mallon, J.), rendered March 24, 1983, convicting him of robbery in the first 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 suppress identification testimony.

Ordered that the judgment is affirmed.

The defendant contests the hearing court’s denial of that branch of his omnibus motion which was to suppress identification testimony on two grounds. First, he argues that a lineup identification was a "fruit of the poisonous tree” because it would not have been held but for a police detective learning about certain property illegally seized from the defendant in an unrelated arrest. However, because the defendant never raised this claim before the hearing court, he has failed to preserve this issue for appellate review (CPL 470.05 [2]; People v Jones, 81 AD2d 22).

Secondly, the defendant argues that the lineup was impermissibly suggestive because remarks by the police to the witness before the lineup indicated that the perpetrator was among the group of people being exhibited. A review the record reveals that the statements that "we possibly have somebody who fit your description” and "the suspect is in the lineup” at most informed the complainant that the police had picked up a suspect, not necessarily the person who robbed him. As such, these remarks were not improper (see, People v Hernandez, 121 AD2d 856).

We have reviewed the defendant’s other claims and find them to be without merit. Mangano, J. P., Weinstein, Lawrence and Kooper, JJ., concur.