People v. Vernon , 549 N.Y.S.2d 730 ( 1990 )

Judgment of the Supreme Court, Bronx County (Dominic Massaro, J., at hearing, plea and sentence), rendered on July 10, 1987, which convicted defendant, upon his plea of guilty following denial of pretrial motions, of robbery in the second degree, and sentenced him, as a second felony offender, to an indeterminate prison term of from 5 to 10 years, is unanimously affirmed.

The arresting officer first saw the defendant and another being chased by a group who said that they had robbed someone. After stopping the two, the arresting officer asked one of the pursuers to get the victim, who when brought to the scene immediately identified defendant. Defendant argues that this showup was unduly suggestive because conducted by the arresting officer without having obtained a description of the perpetrator from the complainant. We decline to reach the merits of this argument since it was not made before the hearing court, and is therefore not preserved for review as a matter of law (CPL 470.15 [4] [a]). Were we to consider it in the interest of justice, we would nevertheless affirm, finding it to be without merit. It cannot be said, upon consideration of the totality of circumstances, that the showup was so suggestive and conducive to irreparable mistaken identification that the defendant was denied due process of law (People v Brnja, 70 AD2d 17, 23, affd 50 NY2d 366). Concur Ellerin, J. P., Wallach, Smith and Rubin, JJ.