Opinion
February 6, 1995
Appeal from the Supreme Court, Queens County (Finnegan, J.).
Ordered that the judgment, as amended, is modified, on the law and as a matter of discretion in the interest of justice, by (1) reversing the conviction for robbery in the third degree, vacating the sentence imposed thereon, and dismissing that count of the indictment, and (2) reducing the term of imprisonment for robbery in the second degree from an indeterminate term of 22 1/2 years to life imprisonment to an indeterminate term of 15 years to life imprisonment; as so modified, the judgment, as amended, is affirmed.
The trial court acted within its discretion in denying the defendant's application to reopen the Wade hearing and to compel production of the complainant, as no substantial issues regarding the constitutionality of the showup identification were raised (see, People v. Chipp, 75 N.Y.2d 327, cert denied 498 U.S. 833; People v. Harvall, 196 A.D.2d 553). Further, at trial, the defendant made no attempt to impeach the complainant's testimony with her allegedly inconsistent Grand Jury testimony nor did he argue during summation that the pretrial identification procedure was unduly suggestive (see, People v. Chipp, supra, at 338-339).
With regard to the conviction for robbery in the second degree, we find that the evidence was legally sufficient to establish that the complainant suffered "substantial pain" (Penal Law § 10.00; see, Penal Law § 160.10 [a]) as a result of the injuries inflicted by the defendant (see, People v Powell, 181 A.D.2d 924; People v. Lopez, 156 A.D.2d 386). However, the conviction for robbery in the third degree must be reversed and that count of the indictment dismissed since robbery in the third degree is a lesser-included offense of robbery in the second degree.
Furthermore, under the circumstances, we find the defendant's sentence to be excessive to the extent indicated.
We have considered the defendant's remaining contentions, including those raised in his supplemental pro se brief, and find them to be without merit. Bracken, J.P., Rosenblatt, O'Brien and Altman, JJ., concur.