Opinion
April 9, 1992
Appeal from the Family Court, Bronx County (Harold J. Lynch, J.).
Family Court's finding that the complainant had an independent source for his in-court identification of appellant is supported by clear and convincing evidence (see, People v Chipp, 75 N.Y.2d 327, 335, cert denied ___ US ___, 111 S Ct 99). The complainant was able to view appellant under good lighting conditions during both the initial encounter at the beginning of gym class and later at the end of gym class when his chain and medallions were stolen (see, Matter of Jason V., 171 A.D.2d 447). The complainant also spontaneously identified appellant to the gym teacher after the crime had occurred (see, People v Logan, 25 N.Y.2d 184, 193-194, cert denied 396 U.S. 1020). While appellant had an absolute right to waive his presence at the Wade hearing, the court's refusal to allow appellant to absent himself in these circumstances was harmless error (People v Huggler, 50 A.D.2d 471, 474).
Concur — Murphy, P.J., Rosenberger, Ellerin, Ross and Rubin, JJ., concur.