People v. Hucks

— Appeal by the defendant from a judgment of the Supreme Court, Kings County (Bianchi, J., at trial; Kreindler, J., at sentence), rendered January 3, 1989, convicting him of burglary in the second degree, criminal possession of stolen property in the fifth degree, and petit larceny, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Bianchi, J.), of those branches of the defendant’s omnibus motion which were to suppress physical evidence, inculpatory statements, and identification testimony.

Ordered that the judgment is affirmed.

We find unpersuasive the defendant’s contention that the hearing court erred in refusing to direct the People to produce two police officers and the complainant as additional witnesses at his pretrial suppression hearing. While the People have the initial burden of demonstrating that no improper police conduct occurred in obtaining the. evidence sought to be suppressed, they are not required to produce each and every police officer with knowledge of the criminal incident and surrounding circumstances (see generally, People v Wither-spoon, 66 NY2d 973). In the instant case, the testimony of the arresting officer demonstrated that the identification evidence, statements and physical evidence were not procured through tainted police procedures. Moreover, the defendant’s request for the production of the other officers who were at the scene was not supported by a "bona fide factual predicate which demonstrated that such officers possessed material evidence on the question” of whether the challenged evidence was lawfully obtained (People v Witherspoon, supra, at 974). Similarly, it is well settled that where, as here, the People have adequately demonstrated that the identification of the defendant was not the product of an unduly suggestive, police-arranged procedure, there is no need to demonstrate an independent source for the in-court identification by the complaining witness "[ajbsent some showing of impermissible suggestiveness” (People v Chipp, 75 NY2d 327, 335, cert denied — US —, 111 S Ct 99). Inasmuch as the defendant failed to come forward with any evidence indicating that the identification resulted from illegal police conduct or unduly suggestive procedures, he was not entitled to the production of the complainant as a hearing witness (see, e.g., People v Chipp, supra). Accordingly, under the circumstances presented in this case, the hearing court did not improvidently exercise its discretion in rejecting the defendant’s request for the production of these additional witnesses.

Insofar as the dissent relies upon the complainant’s trial testimony to support its position that the court should have directed the production of additional witnesses at the pretrial suppression hearing, we note that we are precluded from reviewing trial testimony in determining whether the hearing court acted properly (see, People v Riley, 70 NY2d 523; People v Dodt, 61 NY2d 408; People v Gonzalez, 55 NY2d 720, cert denied 456 US 1010). Since the defendant’s counsel did not seek to reopen the hearing based upon the testimony adduced at the trial, the issue is not properly before us. In any event, consideration of the complainant’s trial testimony only serves to bolster the hearing court’s determination. While there were some differences between the hearing testimony of the police officers and the trial testimony of the complainant with respect to the manner in which the identification occurred, these minor discrepancies were of no moment. Indeed, the complainant’s trial testimony negated any possibility that her identification of the defendant resulted from an alleged suggestive procedure, as it demonstrated that the identification was based on her recognition of the defendant and was not influenced by his physical proximity to her stolen television set.

The defendant’s remaining contentions have not been preserved for appellate review and, in any event, are without merit. Sullivan, J. P., Eiber and Balletta, JJ., concur.