People v. Rivera ( 2017 )

People v Rivera (2017 NY Slip Op 00027)

People v Rivera

2017 NY Slip Op 00027

Decided on January 3, 2017

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 3, 2017
Saxe, J.P., Moskowitz, Gische, Kahn, Gesmer, JJ.

2621 3433/11

[*1]The People of the State of New York, Respondent,

v

Anthony Rivera, Defendant-Appellant.

Cardozo Appeals Clinic, New York (Bobbi Sternheim of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Christine Didomenico of counsel), for respondent.

Judgment, Supreme Court, New York County (Edward J. McLaughlin, J. at hearing; Richard D. Carruthers, J. at jury trial; Ronald A. Zweibel, J. at sentencing), rendered January 29, 2013, convicting defendant of three counts of robbery in the second degree, and sentencing him, as a second violent felony offender, to concurrent terms of 12 years, followed by 5 years of post release supervision, unanimously affirmed.

Since defendant's suppression motion was expressly limited to a Fourth Amendment claim, his argument that his identification should have been suppressed because of an allegedly suggestive lineup is unpreserved and waived, and we decline to review it in the interest of justice. As an alternative holding, we also reject it on the merits. The hearing record does not support

defendant's claim of suggestiveness (see generally People v Chipp , 75 NY2d 327, 336 [1990], cert denied 498 US 833 [1990]), which is largely based on trial, rather than hearing, testimony (see People v Abrew , 95 NY2d 806, 808 [2000]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 3, 2017

CLERK