Opinion
June 10, 1991
Appeal from the County Court, Westchester County (Lange, J.).
Ordered that the judgment is affirmed.
On January 28, 1986, the defendant and his two confederates known as "Knowledge" and "Understanding" approached the victim in a high school gymnasium during a basketball game and asked the value of the victim's leather coat. After the victim and a female companion left the gym, the defendant and his cohorts followed, demanding that the victim turn over his jacket. When the zipper jammed and victim was unable to remove the coat, the defendant asked "should I pop him" to which his friends replied, "Pop him, pop him". The defendant then removed a .22 caliber gun from under his coat and shot the victim in the head from a distance of two to three feet.
One of the defendant's associates testified that at the prison, the defendant "spoke about his lawyer telling him to say that I did it, his lawyer is telling him to say that I did it". This accusation caused defense counsel to shout "He is a liar. I want to have a mistrial". The record reveals that one of the jurors smiled after defense counsel's outburst and the court promptly admonished counsel and instructed the jury to disregard his remarks. The court then gave a comprehensive instruction that the jury was to disregard any conversations at the jail as they had no bearing on the defendant's guilt or innocence. The defendant urges on appeal that this testimony called his counsel's credibility into question and was tantamount to accusation of an uncharged crime. We disagree.
A mistrial motion is directed to the sound discretion of the trial court (see, People v Ortiz, 54 N.Y.2d 288). This witness's brief and obscure reference did not rise to a level of prejudice so that a mistrial was warranted. Further, the prompt curative instructions ameliorated any potential for prejudice (see, People v Braithwaite, 172 A.D.2d 548; People v Lopez, 169 A.D.2d 782; People v Santiago, 155 A.D.2d 628).
The failure of the police to preserve a photographic array "gives rise to an inference" that the array was impermissibly suggestive (People v Stokes, 139 A.D.2d 785; People v Bratton, 133 A.D.2d 408). However, a subsequent in-court identification of the defendant will be permitted if it can be shown that it was based upon the witness's recollection founded upon his or her opportunity to observe the perpetrator at the time of the crime, independent of the suggestive identification procedure (see, People v Adams, 53 N.Y.2d 241; People v Rahming, 26 N.Y.2d 411; People v Watkins, 121 A.D.2d 583). When a witness and a defendant are known to each other, the identification is confirmatory in nature and there is no "identification" within the purview of CPL 710.30 (see, People v Tas, 51 N.Y.2d 915; People v Gissendanner, 48 N.Y.2d 543; People v McNeill, 129 A.D.2d 818; People v Mallory, 126 A.D.2d 750; People v Fleming, 109 A.D.2d 848).
We find that the Supreme Court properly admitted the in-court identification testimony of one of the witnesses who gave testimony before the Grand Jury after an in camera inspection of his Grand Jury testimony established that he and the defendant were previously known to one another (see, People v Rodriguez, 167 A.D.2d 146). As such, the identification was confirmatory in nature and the witness was properly permitted to make an in-court identification of the defendant. The procedure of inspecting a witness's Grand Jury testimony following the People's representation that there is a prior relationship between the defendant and the witness serves the dual goals of protecting witnesses who are justifiably fearful of reprisals and affording the defendant the opportunity to question the prior relationship through a voir dire outside the presence of the jury. As the defendant did not request a voir dire and did not challenge the prior association with the witness, we perceive of no due process violation (see, People v Vargas, 118 Misc.2d 477).
We have examined the defendant's remaining contentions and find them to be without merit. Rosenblatt, J.P., Miller, O'Brien and Ritter, JJ., concur.