People v. Malone ( 1991 )

Judgment, Supreme Court, New York County (Rose Rubin, J.), rendered March 20, 1989, convicting defendant, after a jury trial, of two counts of robbery in the first degree and sentencing him, as a predicate felon, to concurrent prison terms of from 6 to 12 years, unanimously affirmed.

Two days after defendant robbed two women in their apartment building elevator, the elder of the two saw defendant on the street. The evidence at the Wade hearing established that she summoned the other robbery victim and an off-duty police officer, brought them to the location where she had seen the robber, the defendant was pointed out to the officer and the off-duty officer called 911. The police arrived, and the elder of the two women again pointed out defendant, who was now standing near a grocery store. Both women were brought into the grocery store where they positively identified defendant. •

The court correctly declined to suppress the younger woman’s identification of defendant at a police-arranged showup identification, since the identification was initiated by the older woman’s spontaneous recognition of defendant on the street, and the identification procedure used was not overly suggestive (People v Whisby, 48 NY2d 834). Further, any inferential bolstering of this witness’s identification testimony at trial was harmless, since there was overwhelming proof of defendant’s guilt, and no significant probability that defendant would have been acquitted but for the bolstering (People v Johnson, 57 NY2d 969). Concur—Sullivan, J. P., Rosenberger, Wallach, Asch and Smith, JJ.