Opinion
February 11, 1999
Appeal from the Supreme Court, Bronx County (Dominic Massaro, J.).
Defendant's motion to suppress identification testimony was properly denied. The showup was reasonable in the circumstances, being conducted in close geographic and temporal proximity to the crime, and there was nothing unduly suggestive about the procedure itself. The showup was not rendered inadmissible by the fact that the police may have had independent probable cause to arrest defendant prior to the showup (People v. Duuvon, 77 N.Y.2d 541, 545), the fact that defendant was handcuffed behind his back and was in the presence of police officers (supra) or the fact that the complainant was being treated at a hospital (People v. Blanche, 90 N.Y.2d 821).
The court appropriately exercised its discretion in permitting the complainant to testify through an interpreter, based upon the complainant's representation, through the prosecutor, that his limited command of the English language would hinder clarity in the development of proof (see, People v. Wilson, 188 A.D.2d 405, lv denied 81 N.Y.2d 849), and the record fails to support defendant's claim of prejudice. Further, in the circumstances presented, the prosecutor was not required to provide an interpreter in connection with the complainant's Grand Jury testimony (see, People v. Gonzalez, 201 A.D.2d 667, lv denied 83 N.Y.2d 872).
Since defendant's repugnant verdict claim was raised after discharge of the jury, and the record fails to support his assertions that the court's actions prevented him from making a timely objection, his present claim is unpreserved, and we decline to review it in the interest of justice. Were we to review this claim, we would find that the court's instructions to the jury, without objection, that each charge should be considered separately, as though contained in a separate indictment, "expressly sanctioned" the purportedly logically inconsistent verdict (People v. Hankinson, 119 A.D.2d 506, 508), and that the inclusion of a separate mental culpability element in connection with assault in the second degree, but not in connection with robbery in the second degree, also without objection by any party, precludes a finding that the jury's acquittal of defendant on the assault charge rendered the guilty verdict on the robbery charge repugnant (People v. Tucker, 55 N.Y.2d 1, 7).
The court's repeated instructions that the jury disregard a hearsay statement obviated any possible prejudice to defendant and the court properly exercised its discretion in denying defendant's mistrial motion.
Defendant did not preserve his current claim of a Brady violation, and we decline to review it in the interest of justice. Were we to review it, we would reject it.
Concur — Williams, J. P., Wallach, Andrias and Saxe, JJ.