Opinion
February 25, 1999
Appeal from the Supreme Court, New York County (Franklin Weissberg, J.).
The court properly denied defendant's motion to suppress various evidence as fruits of an allegedly unlawful seizure. In a face-to-face encounter ( see, People v. Castro, 115 A.D.2d 433, affd 68 N.Y.2d 850; see also, People v. Green, 35 N.Y.2d 193, 195-196) with a sanitation worker, the arresting officer received information about a recent nearby shooting committed by two perpetrators who had just run into a nearby subway station. The officer immediately proceeded into the station and discovered defendant and another man who reasonably appeared to be accompanying him, both of whom matched the joint description received, and were the only persons in the station whose appearances were consistent with the description. This provided reasonable suspicion for a stop and frisk ( see, People v. Ellison, 222 A.D.2d 693, lv denied 87 N.Y.2d 1019). The immediate flight of defendant's companion upon seeing the officer elevated the level of suspicion ( see, Matter of Robert R., 231 A.D.2d 406), and the forcible detention of defendant was warranted and did not constitute an arrest ( People v. Allen, 73 N.Y.2d 378, 379).
The People established by clear and convincing evidence that there was an independent source for the in-court identification of defendant by an eyewitness whose showup identification had been suppressed as unduly suggestive ( see, People v. Gutierrez, 235 A.D.2d 221, lv denied 89 N.Y.2d 1093). Even if admission of this in-court identification was erroneous, the error was harmless in light of the overwhelming evidence of guilt ( see, People v. Orraca, 237 A.D.2d 148, 149, lv denied 90 N.Y.2d 861).
The People established a proper chain of custody for the bullet recovered from the victim during surgery ( see, People v. Julian, 41 N.Y.2d 340).
Concur — Sullivan, J. P., Nardelli, Wallach and Tom, JJ.