People State New York v. Tyrone James

[110 A.D.2d 1037 Page 1037] Judgment unanimously affirmed. Memorandum: On appeal from a judgment of conviction for burglary in the third degree (Penal Law § 140.20) defendant argues, inter alia, that the People failed to satisfy their burden of proof at the Wade hearing (United States v Wade, 388 U.S. 218) because the only person who testified regarding the pretrial showup was the eyewitness of the burglary. By not raising this issue within the context of his motion to suppress, defendant has failed to preserve the issue for review (see, CPL 470.05 [2]; People v Gonzalez, 55 N.Y.2d 887, 888; People v Jennings, 94 A.D.2d 802, 803). The claim has no merit in any event. Although the People have the burden of going forward in the first instance (see, People v Berrios, 28 N.Y.2d 361, 367; People v Sutton, 47 A.D.2d 455, 459), neither statute nor case law requires the People to call particular witnesses, such as a police officer who participated in the identification. Here, the eyewitness testified that, while looking out her kitchen window, she noticed the defendant and a companion break into a neighboring residence and thereafter hide behind a car nearby. She called the police, described the two males, and informed the police where the suspects were hiding. The police arrived on the scene immediately and noticed a broken door at the subject residence. As one officer approached the car, the defendant, who matched the earlier description, jumped up and ran and was eventually captured and arrested. The police returned with the defendant to the home of the eyewitness. While standing in her front doorway, she positively [110 A.D.2d 1037 Page 1038]