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THE PEOPLE, etc., respondent, v. KEVIN SAFFORD, appellant.

ORDERED that the judgment is affirmed.

The defendant's contention that the police did not have a reasonable suspicion to stop and detain him for a showup identification is unpreserved for appellate review (see CPL 470.05; People v. Gray, 86 N.Y.2d 10). In any event, the defendant partially matched the description of one of the perpetrators furnished by the complainants, and the showup identification was justified by its spatial and temporal proximity to the crime and was not unduly suggestive (see People v. Duuvon, 77 N.Y.2d 541, 544; People v. Herrell, 278 A.D.2d 339, 340).

The manner in which the defendant was stopped and detained did not elevate the encounter to a full-blown arrest (see People v. Allen, 73 N.Y.2d 378, 380; People v. Persaud, 244 A.D.2d 577; People v. Evans, 237 A.D.2d 458). The complainants' prompt identification of the defendant during the showup provided probable cause for his arrest (see People v. Vaughan, 293 A.D.2d 693, lv denied 98 N.Y.2d 682).

The trial court providently exercised its discretion in only giving an adverse inference charge with respect to the People's destruction of certain Rosario material (see People v. Rosario, 9 N.Y.2d 286). The defendant failed to demonstrate that he suffered any prejudice or that the People acted in bad faith (see People v. Martinez, 71 N.Y.2d 937; People v. Jarvis, 249 A.D.2d 417).

The trial court properly submitted the counts of robbery in the first degree to the jury. The evidence failed to establish that the handgun displayed during the commission of the crime was unloaded or incapable of being fired (see People v. Cotarelo, 129 A.D.2d 725; People v. Francis, 126 A.D.2d 740).

The statements made by the codefendant Kenneth Mitchell during his plea allocution were properly admitted at trial as a declaration against penal interest to establish an element of the crime charged (see People v. Brensic, 70 N.Y.2d 9; People v. Thomas, 68 N.Y.2d 194, cert denied sub nom Thomas v. New York, 480 U.S. 948).

S. MILLER, J.P., CRANE, COZIER and RIVERA, JJ., concur.

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PEOPLE v. SAFFORD
(Oct 1, 2002)