PEOPLE v. BROWN

Ordered that the judgment is affirmed.

The defendant's contention that the People were required to present the testimony of the complaining witness at the Wade hearing is unpreserved for appellate review since the defendant failed to raise this issue at the suppression hearing (see, People v Gonzalez, 55 N.Y.2d 887). In any event, this contention is without merit. The record reveals that the prosecution satisfied its initial burden of establishing that the identification of the defendant was not the product of an unduly suggestive, police-arranged procedure, and the defendant failed to meet his ultimate burden of proving that the procedure was unduly suggestive. Accordingly, the prosecution was not required to elicit evidence from the complainant that a source independent of the pre-trial identification procedure exists for an in-court identification (see, People v Chipp, 75 N.Y.2d 327, cert denied 498 U.S. 833; People v Hucks, 175 A.D.2d 213; People v Tweedy, 134 A.D.2d 467).

The defendant further contends that he was denied a fair trial by the prosecution's delay in disclosing Brady material until three weeks prior to the trial (see, Brady v Maryland, 373 U.S. 83). This issue is unpreserved for appellate review since the trial court imposed the sanction requested by the defendant for the delay in producing the material (see, CPL 470.05). In any event, the defendant was not denied a fair trial since he was given a meaningful opportunity to use the exculpatory material to cross-examine the People's witnesses and as evidence during his case (see, People v Cortijo, 70 N.Y.2d 868; People v Estela, 177 A.D.2d 646).

Contrary to the defendant's contention, we find that viewing the evidence in the light most favorable to the People (see, People v Contes, 60 N.Y.2d 620), it was legally sufficient to establish his identity as one of the perpetrators of the crime. Furthermore, upon the exercise of our factual review power, we find that the verdict was not against the weight of the evidence (see, CPL 470.15).

The sentence imposed was not excessive (see, People v Suitte, 90 A.D.2d 80). Thompson, J.P., Lawrence, Eiber and O'Brien, JJ., concur.