People v. McBride — 190 A.D.2d 573

Majority

p. 573

The People of the State of New York, Respondent, v Bernell McBride, Appellant.

— Judgment, Supreme Court, Bronx County (John Collins, J.), rendered November 13, 1990, convicting defendant, after a jury trial, of assault in the first degree and criminal possession of a weapon in the second degree and imposing concurrent prison terms of IV2 to 4Vi years, unanimously affirmed.

Contrary to defendant’s contention, the complaining witness’ out-of-court identification from his bed at the hospital emergency room, some 2 Vi hours after he was shot in the

p. 574

stomach and 1 hour after defendant was located by the police, was not unduly suggestive (see, People v Conyers, 176 AD2d 340 , lv denied 79 NY2d 825 ). At the time of the identification, defendant was not wearing handcuffs or the jacket containing two bullet holes indicating that the shots were fired from inside the garment. Defendant was also previously known by sight to the victim and was immediately identified as the shooter.

Additionally, the hearing court properly exercised its discretion in denying defendant’s request to compel the identifying victim to testify at the Wade hearing (People v Chipp, 75 NY2d 327 , cert denied 498 US 833 ).

We have reviewed defendant’s remaining contentions and find they do not warrant reversal in these circumstances. Concur — -Sullivan, J. P., Rosenberger, Wallach, Ross and Rubin, JJ.

Cases cited

People v. Conyers 176 AD2d 340 N.Y. App. Div. 1991-09-30 p. 574
People v. Chipp 75 NY2d 327 N.Y. 1990-02-15 p. 574