People v. Walker

Judgment, Supreme Court, New York County (Allen Alpert, J., at suppression hearing and jury trial), rendered on or about May 12, 1986, convicting defendant of two counts of attempted robbery in the second degree and one count of criminal possession of a weapon in the fourth degree and sentencing defendant to concurrent terms of 2 to 6 years and one year, respectively, unanimously affirmed.

Defendant and two male accomplices surrounded one of the complainants, produced a handgun, and demanded money. All three, together with two females, then fled, but were apprehended in their vehicle within minutes a short distance from the scene of the robbery. In view of the fact that the defendant was apprehended in a vehicle bearing the same license plate number as was reported to the police, and in view of the testimony by both complainants that defendant was armed with the handgun that was recovered from the same vehicle, defendant’s conviction was established beyond a reasonable doubt. Testimony concerning the showup identifications by both complainants, which occurred in close spatial and temporal proximity to the crime, was properly admitted (see, People v Love, 57 NY2d 1023), and moreover, the People proved by clear and convincing evidence that there was a reliable independent source for each witness’s identification of defendant.

Defendant failed to meet his burden of demonstrating that the statement of an accomplice was admissible as a hearsay exception on the grounds that the statement was a declaration against penal interest. (People v Settles, 46 NY2d 154, 167.) The failure of the People to disclose two prior arrests of one of *552the complaining witnesses until during the testimony of this witness was not claimed to be a Rosario violation at trial, and in any event, the disclosure was made at a time when defense counsel had an opportunity to examine the witness, and therefore the mere delay was not prejudicial. Concur—Kupferman, J. P., Carro, Asch, Smith and Rubin, JJ.