| People v Lopez |
| 2011 NY Slip Op 04953 [85 AD3d 1641] |
| June 10, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Orlando C.Lopez, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Leslie E. Swift of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Stephen R. Sirkin, J.), renderedJanuary 29, 2008. The judgment convicted defendant, upon his plea of guilty, of attemptedrobbery in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment of County Court (Sirkin, J.) convicting him, uponhis plea of guilty, of attempted robbery in the first degree (Penal Law §§ 110.00,160.15 [3]), defendant contends that Supreme Court (Affronti, J.) erred in determining followinga pretrial hearing that the victim had an independent basis for his in-court identification ofdefendant. We reject that contention. Factors to consider in determining whether there is anindependent basis for an in-court identification despite the use of otherwise improperidentification procedures include "the opportunity of the witness to view the criminal at the timeof the crime, the witness' degree of attention, the accuracy of the witness' prior description of thecriminal, the level of certainty demonstrated by the witness at the confrontation, and the length oftime between the crime and the confrontation" (Neil v Biggers, 409 US 188, 199-200[1972]; see People v Smart, 305 AD2d 1110 [2003], lv denied 100 NY2d 566[2003]). The People must establish the existence of an independent basis for the identification byclear and convincing evidence (see People v Chipp, 75 NY2d 327, 335 [1990], certdenied 498 US 833 [1990]), and the suppression court's decision will not be disturbed if it issupported by "sufficient evidence" in the record (People v Yukl, 25 NY2d 585, 588[1969], cert denied 400 US 851 [1970]; see also People v Youngblood, 294AD2d 954, 955 [2002], lv denied 98 NY2d 704 [2002]). Here, there is ample evidencethat the victim had an independent basis for identifying defendant. The victim testified that heviewed the perpetrator face-to-face for 30 to 45 seconds in a well-lit area, and the victim'sdescription of the perpetrator was sufficiently specific to establish that he had a clear view of himat the time of the crime (see People v Tindale, 295 AD2d 987 [2002], lv denied98 NY2d 714 [2002]; People v Bostic [appeal No. 2], 222 AD2d 1073 [1995], lvdenied 88 NY2d 876 [1996]; People v Neese, 138 AD2d 531 [1988]).Present—Centra, J.P., Peradotto, Lindley and Sconiers, JJ.