Citation Numbers: 55 N.Y.2d 720
Judges: Meyer
Filed Date: 11/24/1981
Status: Precedential
Modified Date: 1/12/2023
OPINION OF THE COURT
Memorandum.
The order of the Appellate Division should be affirmed.
We agree with the contention of defendant that evidence subsequently admitted on trial cannot be used to support the determination of the suppression court denying his
Defendant contends that testimony by Officer Collins — that the complainant failed to make any identification of defendant when he and she were conducting a surveillance and again when she viewed the first lineup on September 29 — was inadmissible hearsay and should not have been admitted in evidence. No timely protest sufficient to preserve the issue for appellate review was registered (cf. People v Liccione, 50 NY2d 850). As to the nonidentification at the surveillance, the only objection made, viewed most favorably to defendant, was that it was irrelevant; as to the failure of the complainant to make an identification at the first lineup, no objection was interposed.
We have examined defendant’s other contentions and find them to be without merit.
Contrary to the inference which may be drawn from the dissent, appellant does not now contend that evidence of either of these occasions of nonidentification should have been excluded on the ground that it was irrelevant, the ground expressly identified in counsel’s colloquies with the court. Quite the opposite. In addition to asserting that it should have been excluded as “inadmissible hearsay” (as to which no protest was registered), he now contends that its relevance and probative worth were such that it should have been excluded as impermissible “bolstering evidence of a prior identification” (again a ground which was not advanced in the trial court).