People v. Bayron

People v Bayron (2014 NY Slip Op 05050)

People v Bayron

2014 NY Slip Op 05050

Decided on July 3, 2014

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 July 3, 2014
Friedman, J.P., Sweeny, Andrias, Saxe, Kapnick, JJ.

2682/11 12937 12936

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

v

Rafael Bayron, etc., Defendant-Appellant.

Steven Banks, The Legal Aid Society, New York (Amy Donner of

counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Emily L. Auletta of counsel), for respondent.

Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered January 31, 2012, convicting defendant, upon his plea of guilty, of persistent sexual abuse, and sentencing him, as a second felony offender, to a term of three years, unanimously affirmed.

Defendant's motion to suppress identification testimony was properly denied without a hearing. Although defendant asserted in his moving papers that there was a factual issue as to whether the identification was police-arranged, he did so in conclusory terms. Furthermore, defendant did not dispute the detailed factual assertions in the People's response, which set forth a sequence of events establishing that the identification was completely civilian-initiated and not police-arranged, and was therefore outside the category of identifications subject to Wade hearings (see People v Dixon , 85 NY2d 218, 222-223 [1995]). Accordingly, there was no factual issue requiring a hearing (see People v Lewis , 258 AD2d 287 [1st Dept 1999]).

Defendant did not preserve his claim that the court improperly relied on grand jury minutes in denying a hearing, and we decline to review it in the interest of justice. As an alternative holding, we find that it was permissible for the court to review the grand jury minutes simply to confirm the facts asserted in the People's response (see People v Rumph , 248 AD2d 142 [1st Dept 1998], lv denied 92 NY2d 860 [1998]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JULY 3, 2014

DEPUTY CLERK