Opinion
July 27, 1970
Upon a previous decision of this court ( People v. Whitmore, 30 A.D.2d 877) this case was remitted to the trial court for a hearing and the within appeals by defendant (1) from a judgment of the Supreme Court, Kings County, rendered June 8, 1967, convicting him of attempted rape in the first degree and assault in the second degree, upon a jury verdict after a third trial, and imposing sentence, and (2) from so much of an undated order of said court, made upon a decision rendered May 8, 1967, as denied his motion to suppress evidence of identification, allegedly obtained in violation of his constitutional rights, have been held in abeyance in the interim. Such hearing has been had and a determination rendered thereon. Additionally, appellant has also appealed from a further order of said court dated December 30, 1969, which denied his post-hearing motion to dismiss the indictment or, in the alternative, for a new trial upon the ground of newly discovered evidence. Judgment and order dated December 30, 1969 affirmed and undated order affirmed insofar as appealed from. The remission above mentioned was for a hearing as to whether the victim-witness' in-court identification was tainted by the improper show-up ( People v. Whitmore, 30 A.D.2d 877, supra). After the hearing the Trial Judge found that the District Attorney had sustained the burden which was his to establish by clear and convincing evidence that the in-court identification was based upon the complainant's observations of defendant other than the tainted show-up identification and that the complainant would have been able to identify defendant in court even if the objectionable procedure in the station house had not been followed. In our opinion, the proof justified the findings and conclusions of the Trial Judge ( People v. Brown, 20 N.Y.2d 238; People v. Logan, 25 N.Y.2d 184). Rabin, Acting P.J., Hopkins, Martuscello, Brennan and Benjamin, JJ., concur.