Summary
holding that in-court identification by complaining witness, who had unobstructed view of defendant under good lighting at time of burglary and whose description of defendant was sufficiently specific as to establish her ability to observe perpetrator at time of crime was properly admitted notwithstanding existence of unduly suggestive pretrial identification
Summary of this case from Garcia v. KuhlmannOpinion
June 25, 1990
Appeal from the Supreme Court, Kings County (Fertig, J.).
Ordered that the judgment is affirmed.
The instant case arises out of a burglary which occurred on September 24, 1987, at the apartment of the complaining witness. During the burglary, the complaining witness was able to see the defendant entering her bedroom through the window, under good lighting conditions, at a distance of 10 to 15 feet, for approximately 3 to 5 seconds. After the police apprehended the defendant approximately seven minutes after the crime and one block away from the complainant's apartment, a showup was conducted at the scene. The hearing court found that the showup was highly suggestive and unnecessary since an arrest had already been made, negating the need for immediate identification. However, the court allowed the complainant to make an in-court identification of the defendant based on clear and convincing evidence of an independent source for her identification of the defendant.
It is well settled that a witness may still identify the perpetrator of a crime as part of his or her in-court testimony notwithstanding the existence of an unduly suggestive pretrial identification, provided that the People demonstrate by clear and convincing evidence that the in-court identification is based upon the witness's independent observation of the defendant (see, Manson v. Brathwaite, 432 U.S. 98, 114-115; Neil v Biggers, 409 U.S. 188, 199-200; United States v. Wade, 388 U.S. 218, 241; People v. Adams, 53 N.Y.2d 241, 251; People v. Thomas, 51 N.Y.2d 466, 474-475). The amount of time a witness has to observe the defendant is only one factor to be considered under the totality of circumstances surrounding an identification (see, People v. Neese, 138 A.D.2d 531; People v. Androvett, 135 A.D.2d 640, 642). In this case, the complaining witness had an unobstructed view of the defendant under good lighting conditions and her description was sufficiently specific as to establish her ability to observe the perpetrator at the time of the crime. Bracken, J.P., Sullivan, Harwood and Rosenblatt, JJ., concur.