People v. Smalls

Appeal by defendant from a judgment of the Supreme Court, Queens County (Sherman, J.), rendered October 23, 1981, convicting him of rape in the first degree, robbery in the first degree, attempted sodomy in the first degree, sexual abuse in the first degree and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence of two terms of imprisonment of 8 Ms to 25 years, to run consecutively with each other, and terms of imprisonment of 5 to 15 years, 2Ms to 7 years, and 1 year, to run concurrently with the other terms of imprisonment imposed.

Judgment modified, as a matter of discretion in the interest of justice, by providing that all the terms of imprisonment are to run concurrently. As so modified, judgment affirmed.

On this appeal, defendant essentially contends that (1) the victim’s lineup and in-court identifications of him should have been suppressed because of unduly suggestive photographic identification procedures employed by the police, and (2) the court should have imposed concurrent, not consecutive, sentences for robbery in the first degree and rape in the first degree. We find merit in only one of these contentions.

As to the first contention, although the pretrial photographic identification procedures were unduly suggestive, as defendant argues, the record reveals that there was an independent basis for the victim’s subsequent pretrial lineup and in-court identifications of him. The crime took place in a well-lighted hallway, and the victim observed the defendant for approximately 20 minutes. Shortly after the incident, the victim gave the police a detailed and accurate description of the defendant. She also immediately identified the defendant during the lineup procedure at which defense counsel was present. Thus, the lineup and in-court identifications were properly admitted (see, Manson v Brathwaite, 432 US 98, 114; Neil v Biggers, 409 US 188, 199-200). Furthermore, we would note, any reference at trial to the photographic identification procedures was elicited by defense counsel on cross-examination of the prosecution’s witnesses. Consequently, defendant waived any possible objection to the admission of testimony on this subject (see, People v Lyde, 104 AD2d 957).

As to defendant’s contention with respect to sentencing, assuming, arguendo, that the imposition of consecutive sentences at bar was legally permissible, as our dissenting colleague states (see, People v Tanner, 30 NY2d 102; People v Dorsey, 79 AD2d 611), we agree with defendant that the imposition of these consecutive sentences resulted in an unduly lengthy period of incarceration. Although we sympathize with the victim and in no way condone the heinous crimes involved, we believe that the four principal objectives of punishment—deterrence, rehabilitation, retribution and isolation—will be adequately served by imposing concurrent sentences of 8V3 to 25 years. Accordingly, we substitute our own discretion for that of the trial court and modify the judgment in the interest of justice by providing for such concurrent terms of imprisonment (see, CPL 470.15 [3]; People v Suitte, 90 AD2d 80). Lazer, J. P., Brown and O’Connor, JJ., concur.