Opinion
6259, 6260.
June 7, 2005.
Judgments, Supreme Court, New York County (Gregory Carro, J., at hearing; John A.K. Bradley, J., at jury trial and sentence), rendered September 30, 2003, convicting defendant of two counts of burglary in the second degree, and sentencing him, as a persistent violent felony offender, to concurrent terms of 24 years to life, unanimously affirmed.
Robert S. Dean, Center for Appellate Litigation, New York (Lisa Joy Robertson of counsel), for appellant.
Robert M. Morgenthau, District Attorney, New York (Heather Pearson of counsel), for respondent.
Before: Buckley, P.J., Tom, Ellerin, Williams and Sweeny, JJ.
The court properly denied defendant's suppression motion. The prompt, on-the-scene showup identification was not rendered unduly suggestive by the officer's remark to the witness that the police had a suspect or by the fact that defendant was handcuffed and under police guard ( see e.g. People v. Smith, 271 AD2d 332, lv denied 95 NY2d 871; People v. Edwards, 259 AD2d 343, lv denied 93 NY2d 969).
The court's Sandoval ruling balanced the appropriate factors and was a proper exercise of discretion ( see People v. Hayes, 97 NY2d 203; People v. Walker, 83 NY2d 455, 458-459; People v. Pavao, 59 NY2d 282, 292). Defendant's theft-related convictions were highly relevant to his credibility.
The court properly exercised its discretion in denying defendant's mistrial motion made after a police witness briefly mentioned defendant's parole status. The court's prompt and thorough curative instructions were sufficient to prevent any prejudice ( see People v. Santiago, 52 NY2d 865).
Defendant's constitutional challenge to the procedure under which he was sentenced as a persistent violent felony offender is unpreserved for appellate review and, in any event, is without merit ( see People v. Rosen, 96 NY2d 329, cert denied 534 US 899). Defendant's mandatory sentence as a persistent violent felony offender was triggered solely by his prior convictions ( see Almendarez-Torres v. United States, 523 US 224).
We perceive no basis for reducing the sentence.