There is also some indication in the hearing record that the eyewitness may have been shown the first photographic array a second time, immediately before viewing the second array. If true, this would effectively eliminate the possibility that attenuation between the viewing of the two arrays nullified any possible impropriety in the identification procedure. Under the totality of the circumstances of this case, we find that the identification procedure was impermissibly suggestive. However, it is well-settled that even when an identification is the product of a suggestive pretrial identification procedure, a witness will nonetheless be permitted to identify a defendant in court if that identification is based upon an independent source (see, Neil v. Biggers, 409 U.S. 188, 199-200; People v. Benbow, 180 A.D.2d 805). The hearing record indicates that the eyewitness was a retired, 21-year police veteran who, in his present occupation as a bank teller, processed the transaction in which the defendant cashed the forged instrument. The perpetrator, seated in a van with "T.F. Andrews Co.
The defendant's claim that the court erred in not including the defense counsel's suggested language in its identification charge to the jury is without merit. The court correctly conveyed the elements to be weighed when assessing the accuracy and veracity of the identification testimony (see, People v. Brown, 203 A.D.2d 474; People v. Benbow, 180 A.D.2d 805). Viewing the evidence in the light most favorable to the People (see, People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.
Under the circumstances of this case, the defendant was not deprived of his right to counsel at the lineup ( see, Commonwealth v Charles, 397 Mass 1, 489 NE2d 679). In any event, the eyewitness had an independent basis for her identification of the defendant ( see, People v Berry, 201 AD2d 489; People v Benbow, 180 AD2d 805). Contrary to the defendant's contention, the prosecutor proffered a race neutral explanation for challenging a prospective juror ( see, Purkett v Elem, 514 US 765; see also, People v Allen, 86 NY2d 101, 109). Thereafter, the burden shifted to the defendant to demonstrate that the proffered explanation was pretextual ( see, People v Payne, 88 NY2d 172, 181), and this the defendant failed to do.
At the Wade hearing, the officers testified that each had observed the defendant for a few minutes at close range, and under very good lighting conditions. The record, therefore, supports the hearing court's determination that an independent source existed to support the officers' in-court identifications of the defendant (see, United States v Wade, 388 U.S. 218; see, e.g., People v Rowan, 199 A.D.2d 546, 547; People v Di Girolamo, 197 A.D.2d 531, 532-533; People v Brown, 191 A.D.2d 502; People v Ericsen, 186 A.D.2d 219; People v Benbow, 180 A.D.2d 805). The defendant's contention that he was deprived of a fair trial on the ground that the prosecutor exercised peremptory challenges in a racially discriminatory manner is unpreserved for appellate review (see, People v Cruz, 200 A.D.2d 581).
Ordered that the judgment is affirmed. Contrary to the defendant's contention, the hearing court properly determined that there was an independent source for the complainant's in-court identification of the defendant (see, People v. Berry, 201 A.D.2d 489; People v. Benbow, 180 A.D.2d 805; People v. Hyatt, 162 A.D.2d 713; People v. Rodriguez, 137 A.D.2d 847). The sentence imposed is not excessive (see, People v. Suitte, 90 A.D.2d 80). The defendant's challenge to the imposition of the mandatory surcharge is premature (see, People v. Burke, 204 A.D.2d 345; People v. Fields, 193 A.D.2d 814; People v. Angelista, 176 A.D.2d 238). Sullivan, J.P., Rosenblatt, Pizzuto and Altman, JJ., concur.
Ordered that the judgment is affirmed. The instant case arises out of a shooting which occurred during the early morning hours of December 4, 1988. Contrary to the defendant's contention, the People's eyewitness was properly permitted to identify him in court as the perpetrator of the crimes charged. It is well settled that a witness may identify the perpetrator of a crime as part of his in-court testimony notwithstanding the use of a suggestive pretrial identification procedure, provided that the People demonstrate by clear and convincing evidence that the in-court identification is based upon the witness's independent observations of the defendant during the commission of the crime (see, People v. Howard, 167 A.D.2d 418, 419; People v. Benbow, 180 A.D.2d 805; People v Smalls, 112 A.D.2d 173, 174). The inquiry is a factual one, involving an evaluation of the totality of circumstances (see, People v. Malloy, 55 N.Y.2d 296, 300).
Ordered that the judgment is affirmed. Contrary to the defendant's contention, we discern no error in the court's action in striking the testimony of defense witness, Dorothy Sandoval (see, People v Benbow, 180 A.D.2d 805). "While due process requires that a defendant in a criminal case be permitted to call witnesses in his own behalf and to introduce evidence that a person other than he committed the crime charged (see, Chambers v Mississippi, 410 U.S. 284), `such evidence must do more than raise a mere suspicion that another person committed the crime; there must be a clear link between the third party and the crime in question'" (People v Zanfordino, 157 A.D.2d 682, 683, quoting People v Brown, 133 A.D.2d 773, 774; People v Austin, 112 A.D.2d 242; People v Aulet, 111 A.D.2d 822, 825; People v Jiminez, 172 A.D.2d 367, 368). In the instant case, we find that the defendant failed to establish such a link.