Opinion
March 1, 1984
Judgment, Supreme Court, New York County (McGinley, J., at trial; Stecher, J., at suppression hearing), rendered December 20, 1980, convicting the defendant after a jury trial of murder in the second degree and sentencing him as a second felony offender to an indeterminate prison term of from 25 years to life, affirmed. ¶ This appeal has been held in abeyance and the matter was remanded for a suppression hearing addressed to the question of whether the lineup was fair or impermissibly suggestive ( 90 A.D.2d 1). A reopened Wade hearing was held before Justice Becker. At that hearing, Justice Becker closely observed the facial characteristics of the defendant and the three stand-ins. ¶ In an opinion dated October 3, 1983, Justice Becker found that neither the defendant nor the stand-ins had red hair. He did find, however, that all the participants in the lineup had similar facial features. It was Justice Becker's conclusion that the lineup was fair, permissible and proper. ¶ The evidence at the reopened hearing amply supports Justice Becker's factual determination that the lineup was fairly conducted. Based upon the additional evidence submitted at the reopened hearing, we are now in agreement that the lineup identification by witnesses Jill Smith and Angela Dortch was properly admitted at trial. We also agree that there was an independent basis for Jill Smith's identification at trial. Although Jill Smith's identification testimony was extensively impeached at trial, her credibility remained a matter for the jury. We find that the totality of the evidence at trial was sufficient to establish defendant's guilt beyond a reasonable doubt. We find no merit to the other points raised by the defendant.
Concur — Murphy, P.J., Sandler, Ross, Carro and Milonas, JJ.