Opinion
June 18, 1999
Appeal from Judgment of Supreme Court, Monroe County, Ark, J. — Assault, 2nd Degree.
PRESENT: PINE, J. P., LAWTON, PIGOTT, JR., HURLBUTT AND SCUDDER, JJ.
Judgment unanimously affirmed. Memorandum: Supreme Court erred in denying defendant's motion to suppress identification testimony without placing its findings of fact and conclusions of law upon the record as required by CPL 710.60 (6) (see, People v. Smith, 179 A.D.2d 1022, lv denied 79 N.Y.2d 1007). "The failure to do so is not fatal, however, where, as here, there has been a full and fair hearing. In such instances, this court may make its own findings of fact and conclusions of law" (People v. Lewis, 172 A.D.2d 1020, 1021). Defendant contends that one of two showup identifications was unduly suggestive. We disagree. The showup took place in the parking lot outside a police station (cf., People v. Duuvon, 77 N.Y.2d 541, 544; People v. Riley, 70 N.Y.2d 523, 529-531), within a two or three minute ride from the scene and about an hour and a half after the crime (see, People v. Woods, 238 A.D.2d 900, 901, lv denied 90 N.Y.2d 912; People v. Smythe, 210 A.D.2d 949, lv denied 85 N.Y.2d 943). The witness observed defendant while he stood next to a police car with a police officer standing with him. The fact that the showup occurred in police presence does not render the showup unduly suggestive (see, e.g., People v. Presley, 231 A.D.2d 847, lv denied 89 N.Y.2d 928; People v. Torres, 210 A.D.2d 875, lv denied 85 N.Y.2d 944).
At the Wade hearing, defendant objected to a photo identification procedure on the ground that the People failed to produce the photograph. Thus, defendant failed to preserve for our review his present contention that the evidence of the witness's familiarity with defendant was insufficient to establish that the identification was confirmatory (see, People v. Terry, 224 A.D.2d 202, 202-203, lv denied 88 N.Y.2d 943; People v. Campbell, 187 A.D.2d 442, 442-443, lv denied 81 N.Y.2d 837). Were we to review the issue as a matter of discretion in the interest of justice, we would conclude that the testimony of the officer who conducted the procedure is sufficient to establish that there was a prior relationship between the witness and defendant (see, People v. Terry, supra, at 203).
The court properly denied defendant's Batson challenge to the prosecutor's exercise of a peremptory challenge to remove the only minority juror from the panel. Even assuming, arguendo, that defendant met his initial burden by establishing a prima facie case of discrimination, we conclude that the prosecutor came forward with a nonpretextual, racially neutral reason for using a peremptory challenge to exclude that juror (see, People v. Hoskins, 254 A.D.2d 729 [decided Oct. 2, 1998]; see also, People v. Bonner, 256 A.D.2d 1219 [decided Dec. 31, 1998]; People v. Owens, 256 A.D.2d 1220 [decided Dec. 31, 1998]).