People v. Bello , 631 N.Y.S.2d 714 ( 1995 )

Appeals by the defendant from (1) a judgment of the Supreme Court, Queens County (Berkowitz, J.), rendered April 22, 1992, convicting him of robbery in the second degree under Indictment No. 1607/91, upon a jury verdict, and imposing sentence, and (2) an amended judgment of the same court (O’Dwyer, J.), rendered April 23, 1992, revoking a sentence of probation previously imposed by the same court, upon a finding that he had violated a condition thereof, upon his admission, and imposing a sentence of imprisonment upon his previous conviction of criminal sale of a controlled substance in the third degree under Indictment No. 8223/87.

Ordered that the judgment and the amended judgment are affirmed.

The defendant has not preserved for appellate review his contention that the complainant’s identification testimony-under Indictment No. 1607/91 should have been suppressed because of the People’s failure to give notice of a station house identification (see, CPL 470.05 [2]; People v Medina, 53 NY2d 951; People v Udzinski, 146 AD2d 245; People v Walters, 116 AD2d 757) and, in any event, the contention is without merit. The due process concerns underlying the notice provisions of CPL 710.30 are implicated whenever identification procedures come about at the deliberate direction of the State (see, People v Dixon, 85 NY2d 218, 222-223; People v Newball, 76 NY2d 587, 591). Accordingly, a Wade hearing is not necessary where the identification of a defendant was not police arranged (see, People v Dixon, supra). When the police do not arrange the identification of a defendant, the identification is a non-police-sponsored identification "resulting from mere happenstance, such as where a witness is present in police headquarters for some purpose other than to effectuate an identification, and by chance views and identifies a suspect who is being processed in another room” (People v Dixon, supra, at 223).

The complainant’s identification of the defendant in this case was not arranged by the police. After the complainant was robbed of money and jewelry, he was taken to the police precinct to complete a police report of the incident. Officer Stephen Yorkus, one of the arresting officers, testified during voir dire that the defendant and another individual apprehended by the police were placed in a holding pen before the complainant arrived at the station house and that the holding pen could not be seen from the complainant’s location in the waiting area. Officer Yorkus stated that he had no knowledge as to whether the complainant walked over to the holding pen to view the defendant and his alleged accomplice or whether any. other officer had such knowledge. Officer Yorkus could only speculate as to how the complainant was able to view the defendant and his alleged accomplice. By whatever means the complainant came to see the defendant, it is clear from Officer Yorkus’ testimony that the police did not arrange the viewing. Moreover, the defendant had a full and fair opportunity to cross-examine the complainant and Officer Yorkus regarding the viewing both at trial and during the voir dire.

Since the police did not arrange the complainant’s identification of the defendant, the prosecution was not required to notify the defendant of the identification (see, CPL 710.30; People v Rodriguez, 194 AD2d 634; People v Overton, 192 AD2d 624).

In light of our determination, the defendant’s remaining contention is without merit. Copertino, Joy and Hart, JJ., concur.