Opinion
November 2, 1995
Appeal from the Supreme Court, New York County (Joan Carey, J.).
The hearing court properly denied defendant's motion to suppress his lineup identifications by two witnesses. The lineups were not tainted by the witnesses' viewing of a photograph of defendant sixteen days earlier at the precinct. At the time the witnesses were shown the photograph, the police had been led to believe that defendant was a potential victim. Therefore, the earlier identification was not the result of a police-initiated identification procedure ( People v Kavanaugh, 207 A.D.2d 719, lv denied 84 N.Y.2d 937). In any case, since the witnesses had recognized defendant at the time of the shooting, as a person familiar from the neighborhood, the display of defendant's photograph could not have tainted either their lineup or in-court identifications of defendant ( People v Welker, 150 A.D.2d 515, lv denied 74 N.Y.2d 853). Defendant also failed to establish that the lineups were unduly suggestive ( People v Chipp, 75 N.Y.2d 327, cert denied 498 U.S. 833).
Since defense counsel consented to a continuation of the Wade hearing after the commencement of trial, defendant cannot be heard to complain that he was deprived of his right to open because the court did not rule on his Wade motion until after the People had called several witnesses. Finally, we perceive no basis to disturb the trial court's finding that a victim's in-court identification of defendant was not prompted by the audience.
Contrary to defendant's appellate argument, the weight of the evidence fully supports his conviction. Three of the four surviving occupants of the car identified him as one of the shooters, as did a disinterested witness who simply was looking out her window immediately prior to the shooting. The jury was certainly warranted in rejecting the testimony of the alibi witnesses who were close friends of the defendant.
The hearsay statement of one of defendant's shooting victims, who was interviewed by a detective in the hospital approximately one hour after the shooting when the victim was in critical condition and severe distress, naming "Vidal" as his assailant, was properly admitted as an excited utterance ( People v Brown, 70 N.Y.2d 513, 522).
The trial court properly ruled that defendant's rights under Brady v Maryland ( 373 U.S. 83) were not violated by the People's failure to turn over their notes of an interview with a defense witness since the information sought by defendant could easily have been discovered by him from his own witness. In any event, the material was not exculpatory. We also find the record fails to support any of defendant's appellate arguments that he was excluded from material stages of the trial, including the Sandoval hearing ( People v Jones, 213 A.D.2d 250).
Defendant's consecutive sentences were authorized because the shooting of two victims constitutes separate and distinct acts (Penal Law § 70.25; People v Brathwaite, 63 N.Y.2d 839, 843). Furthermore, a severe sentence was warranted in the circumstances, where defendant and his cohort indiscriminately shot at the five defenseless occupants of the car, it being merely fortuitous that only one of them died.
We have considered defendant's remaining contentions and find them to be without merit.
Concur — Sullivan, J.P., Ellerin, Ross, Tom and Mazzarelli, JJ.