Opinion
June 9, 1986
Appeal from the Supreme Court, Kings County (Fuchs, J.).
Judgment affirmed.
The hearing court properly denied that branch of the defendant's omnibus motion which sought to suppress his confessions. The first of the challenged confessions was made at the time of the defendant's arrest in response to a police officer's question which was aimed at clarification of the situation confronted by the officer rather than to elicit incriminating evidence and, thus, was permissible in the absence of Miranda warnings (see, People v. Johnson, 86 A.D.2d 165, affd 59 N.Y.2d 1014; People v. Huffman, 41 N.Y.2d 29). The second confession was made after the defendant was advised of his Miranda rights and, in any event, was not made in response to questions posed by law enforcement personnel. Therefore, it was also properly admitted into evidence (see, People v. Huffman, supra, at p 33).
We also find that the complainant's identification testimony was properly admitted at trial. Although the pretrial showup was less than ideal, it was not violative of due process since it was made in the vicinity of the crime and within a short time of its commission (see, People v. Love, 57 N.Y.2d 1023; People v. Brnja, 50 N.Y.2d 366; People v. Smith, 38 N.Y.2d 882; cf. People v. Ford, 100 A.D.2d 941). The defendant's allegation of impermissible police conduct is erroneously based on trial testimony. The propriety of a denial of a motion to suppress "must be judged on the evidence before the suppression court" (see, People v. Gonzalez, 55 N.Y.2d 720, 722, cert denied 456 U.S. 1010; People v. Dodt, 61 N.Y.2d 408). Therefore, we decline to consider the allegation.
The defendant's claim of bolstering in violation of the rule of People v. Trowbridge ( 305 N.Y. 471) has not been preserved for appellate review since no objection was raised at the trial court (see, People v. Love, 57 N.Y.2d 1023, supra; People v West, 56 N.Y.2d 662) and we decline to consider it in the interest of justice.
We find no basis to modify the sentence imposed (see, People v Suitte, 90 A.D.2d 80). We have considered the defendant's remaining contention and find it to be without merit. Mangano, J.P., Gibbons, Kooper and Spatt, JJ., concur.