Opinion
(1300) KA 98-05669.
November 9, 2001.
(Appeal from Judgment of Erie County Court, DiTullio, J. — Robbery, 1st Degree.)
PRESENT: PINE, J.P., SCUDDER, BURNS, GORSKI AND LAWTON, JJ.
Judgment unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting him after a jury trial of two counts of robbery in the first degree (Penal Law § 20.00, 160.15, [4]) and one count of robbery in the second degree (Penal Law § 20.00, 160.10). Defendant contends that the showup identification procedure was unduly suggestive and thus that County Court erred in denying his motion to suppress the victim's showup identification. As we determined on the appeal of the codefendant, that contention lacks merit ( see, People v. Ricks, 270 A.D.2d 882, 882-883, lv denied 95 N.Y.2d 802). Defendant failed to preserve for our review his contention that the police lacked the requisite reasonable suspicion to support their stop and detention of him ( see, People v. Sanders, 224 A.D.2d 956, lv denied 88 N.Y.2d 885). In any event, that contention lacks merit. The police had reasonable suspicion to stop and detain defendant, who matched the description of one of the perpetrators ( see, People v. Hicks, 68 N.Y.2d 234, 242).
Defendant also failed to preserve for our review his contention that the police officers' testimony bolstered the identification testimony of the victim and denied defendant a fair trial. Were we to exercise our power to review that contention as a matter of discretion in the interest of justice ( see, CPL 470.15 [a]), we would conclude that it lacks merit. The officers' testimony "merely served as a necessary narrative of events leading to defendant's arrest" ( People v. Jones, 160 A.D.2d 333, lv denied 76 N.Y.2d 790).
We reject the contention of defendant that the court erred in denying his request for a mistrial after an officer referred to a prior arrest of defendant. The court's immediate curative instructions sufficiently minimized any prejudice resulting from that testimony ( see, People v. Young, 48 N.Y.2d 995, 996, rearg dismissed 60 N.Y.2d 644).
Additionally, we reject the contention of defendant that the court erred in denying his CPL 330.30 motion based on ineffective assistance of counsel and newly discovered evidence. Defendant's ineffective assistance of counsel claim concerns matters dehors the record and thus is not reviewable on direct appeal ( see, CPL 330.30). With respect to the newly discovered evidence claim, defendant's motion papers fail to establish that defendant could not have discovered that evidence before trial with the exercise of due diligence ( see, People v. Carrier, 270 A.D.2d 800, 802, lv denied 95 N.Y.2d 864). Finally, the sentence is neither unduly harsh nor severe.