Opinion
May 23, 1986
Appeal from the Supreme Court, Monroe County, Bergin, J.
Present — Callahan, J.P., Doerr, Denman, Boomer and Green, JJ.
Judgment unanimously affirmed. Memorandum: There was ample evidence proving defendant's guilt beyond a reasonable doubt.
The charge on identification was more than adequate (see, People v Whalen, 59 N.Y.2d 273, 279).
The suppression court properly refused to suppress the in-court identification of Police Officer Peterson. The viewing of defendant's photograph by Officer Peterson was for the purpose of assuring that an arrest warrant would be issued for the right person (see, People v Morales, 37 N.Y.2d 262, 272; People v Carolina, 112 A.D.2d 244; People v Marrero, 110 A.D.2d 785; People v Stanton, 108 A.D.2d 688). Moreover, there was an independent basis for the in-court identification. Officer Peterson first saw defendant as he walked across the street into the restaurant. The street lamp in front of the restaurant and the lighted advertising sign on the building enabled the officer to get a clear view of defendant's face. The officer again saw defendant as he looked out the back door of the restaurant and as he walked out of the front door into the parking lot and in front of Officer Peterson's police car. Officer Peterson had reason to pay close attention to defendant. He noticed that a young woman was leading the victim into an alleyway, and when he saw her beckon to defendant and his companion, he continued to observe them as they followed the young woman and the victim.
Contrary to defendant's contention, the court sentenced defendant on both counts of attempted robbery in the second degree. We construe the sentence imposed as indeterminate terms of 2 1/3 to 7 years on each of the two counts, to run concurrently.
We have considered the other issues raised by defendant and we find them to be without merit.