Opinion
December 12, 1988
Appeal from the Supreme Court, Kings County (Pesce, J.).
Ordered that the judgment is affirmed.
In determining whether an identification procedure is improperly suggestive, the applicable standard is whether the procedure is conducted in such a way that there is a substantial likelihood of irreparable misidentification (see, Neil v Biggers, 409 U.S. 188; People v Brnja, 50 N.Y.2d 366).
Initially, we note that the giving of a description of the perpetrator of a crime to law enforcement officials by a witness is not an identification for the purposes of CPL 710.30. Although the circumstances under which a witness gives a description may have some impact on the ultimate identification of a suspect, it does not per se constitute a ground for suppressing evidence. It is merely another factor to be considered in assessing the reliability of a witness's identification.
In the instant case, the complainant knew the defendant from having previously seen him around the neighborhood. Further, the complainant and an eyewitness observed the defendant at close range for five minutes during the commission of the crime, under good lighting, providing them with an independent basis for making the photographic and lineup identifications.
Viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (CPL 470.15).
Finally, the Supreme Court did not abuse its discretion in denying the defendant's motion for a material witness order, since he failed to establish the materiality of the proposed witness's testimony (see, People v Van Skiver, 111 A.D.2d 1032). Bracken, J.P., Lawrence, Kunzeman and Spatt, JJ., concur.