Opinion
June 22, 1995
Appeal from the Supreme Court, New York County (Herbert Altman, J.).
Defendant's claim regarding the propriety of reopening the Wade hearing and conducting an independent source hearing during the trial, even though the witness had already made an in-court identification of defendant, is unpreserved ( People v Correa, 200 A.D.2d 415, lv denied 83 N.Y.2d 850), and we decline to review it in the interest of justice. If we were to review it, we would find that it was proper for the trial court to reopen the Wade hearing since additional pertinent information was adduced at trial regarding the propriety of a precinct viewing by the witness (CPL 710.40), and once the testimony established that the viewing was unduly suggestive, to conduct an independent source hearing ( People v. Diaz, 213 A.D.2d 353; People v. Dixon, 85 N.Y.2d 218, 225). Furthermore, the record supports the trial court's determination that the witness' viewing of defendant in his neighborhood prior to the incident and at the time of the shooting, coupled with his selection of defendant from a photo array prior to his inadvertent encounter with defendant at the precinct, amply demonstrated the existence of an independent source for his in-court identification, despite any minor discrepancies in his testimony ( People v. Ramos, 42 N.Y.2d 834).
Defendant's contention that the court erred when it instructed the jury on acting-in-concert, although the indictment charged him as a principal, is unpreserved for review ( People v Velasquez, 188 A.D.2d 394, lv denied 81 N.Y.2d 795), and in any event is without merit ( see, People v. Rivera, 84 N.Y.2d 766, 769).
We have considered defendant's remaining claims, including those raised in his supplemental pro se brief, and find them to be without merit.
Concur — Ellerin, J.P., Wallach, Nardelli, Tom and Mazzarelli, JJ.