Summary
In People v. Williams (85 N.Y.2d 868 [1995]), independent source was found when a trained undercover testified that he had only a brief viewing of the perpetrator.
Summary of this case from People v. NewmanOpinion
Argued February 15, 1995
Decided March 23, 1995
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, Peter P. Rosato, J.
Sally Wasserman, White Plains, for appellant.
Jeanine Pirro, District Attorney of Westchester County, White Plains (Christopher Michael Shaw and Maryanne Luciano of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed.
As the Appellate Division found, and the People now concede, the undercover officer's viewing of a single photograph of defendant two days after the officer participated in a buy and bust operation could not be characterized as a mere confirmatory identification. Although the hearing court took evidence on an independent source for the officer's in-court identification testimony, defendant failed to raise the contention he now urges: that the People could not establish an independent source in the absence of corroborative testimony of the backup officers. His claim is therefore unpreserved.
Nor was the officer's brief viewing of defendant insufficient to establish independent source. Duration of the officer's opportunity to observe was only one of several factors considered by the lower court in reaching its determination that the identification was reliable, an undisturbed finding supported by the record and therefore beyond our review.
Chief Judge KAYE and Judges SIMONS, TITONE, BELLACOSA, SMITH, LEVINE and CIPARICK concur.
Order affirmed in a memorandum.