Opinion
November 28, 1995
Appeal from the Supreme Court, New York County (Rose Rubin, J.).
Defendant failed to preserve his challenge to the legal sufficiency of the evidence ( People v Gray, 86 N.Y.2d 10), and we decline to review it in the interest of justice. If we were to review it, we would find that defendant's verbal communication to the victim that he had a .38 caliber handgun pointed at her head and would "blow [her] head off" if she made any moves, while holding his hand in his vest pocket, satisfied the element of first-degree robbery — display of what appears to be a firearm ( see, People v Lopez, 73 N.Y.2d 214; People v Taylor, 203 A.D.2d 77, lv denied 83 N.Y.2d 915; People v Butts, 181 A.D.2d 432, lv denied 79 N.Y.2d 1047).
Although the investigatory showup was conducted some two hours after the robbery, this time lapse, by itself, does not compel a conclusion that it was improper ( see, e.g., People v Maybell, 198 A.D.2d 108, lv denied 82 N.Y.2d 927; People v Lewis, 123 A.D.2d 716; People v Veal, 106 A.D.2d 418). The showup was conducted not only shortly after defendant's detention and in close proximity to the crime scene, but unlike People v Johnson ( 81 N.Y.2d 828), the police never indicated to the victim that there was a suspect in custody and made it appear to the victim that defendant was not in custody, and the victim, from a distance, was asked only generally to scan the block to see if she saw anyone whom she recognized.
We have considered defendant's claim that the inquiry conducted by the court was too perfunctory to ensure that his waiver of counsel was knowing, voluntary and intelligent, and find it to be without merit. Moreover, counsel, who acted as a legal advisor, was present during the entire trial.
Concur — Rosenberger, J.P., Rubin, Kupferman, Asch and Williams, JJ.