| People v Pride |
| 2015 NY Slip Op 04868 [129 AD3d 869] |
| June 10, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Edward Pride, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Patricia Pazner and Kendra L. Hutchinson ofcounsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Seth M.Lieberman, and Victor Barall of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Marrus, J.), rendered September 4, 2012, convicting him of robbery in the first degree(two counts), upon a jury verdict, and imposing sentence. The appeal brings up forreview the denial, after a hearing (Mangano, Jr., J.), of that branch of the defendant'somnibus motion which was to suppress in-court identification evidence.
Ordered that the judgment is reversed, on the law, and a new trial is ordered, to bepreceded by a hearing to determine whether an independent source for the identificationexists.
The defendant's conviction arises out of two bank robberies that occurred at the samebank 13 days apart. Following a suppression hearing, the Supreme Court granted thatbranch of the defendant's omnibus motion which was to suppress a lineup identificationmade by a bank teller on the ground that the lineup procedure was unduly suggestive.The court also ruled that the bank teller, who had not testified at the hearing, would bepermitted to make an in-court identification of the defendant, finding that an independentsource for her identification of the defendant existed. At the trial, the bank telleridentified the defendant as the bank robber.
The defendant's contention that the evidence was legally insufficient to establish hisidentity as the perpetrator is unpreserved for appellate review (see CPL 470.05[2]; People v Hawkins, 11NY3d 484, 492 [2008]; People v Pitre, 108 AD3d 643, 643 [2013]). In any event,viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish thedefendant's identity as the perpetrator of the subject crimes beyond a reasonable doubt.Moreover, in fulfilling our responsibility to conduct an independent review of the weightof the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348-349 [2007]), wenevertheless accord great deference to the jury's opportunity to view the witnesses, hearthe testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410[2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing therecord, we are satisfied that the verdict of guilt was not against the weight of theevidence (see People vRomero, 7 NY3d 633 [2006]).
[*2] Contrary to the People's assertion, the defendant's challenge to the hearing court'sdetermination that the bank teller would be permitted to make an in-court identificationof the defendant is preserved for appellate review (see People v Feingold, 7 NY3d 288, 290 [2006]; People v Lewis, 5 NY3d546, 551 [2005]; People v Mezon, 80 NY2d 155, 161 [1992]). Moreover,the court's ruling was erroneous. "When an eyewitness does not testify at a suppressionhearing involving identification, the trial court lacks the basis to make a finding as towhether an independent source exists for an in-court identification untainted by a priorsuggestive viewing" (People v Riley, 70 NY2d 523, 531-532 [1987]; see People v Burnice, 113AD3d 1115, 1115 [2014]; People v Jackson, 286 AD2d 688, 688 [2001];People v Bady, 202 AD2d 440, 440 [1994]). Here, in view of the fact that thewitness did not testify at the suppression hearing, there was no basis for finding anindependent source. Contrary to the People's contention, the erroneous admission of thein-court identification was not harmless (see People v Gethers, 86 NY2d 159,163 [1995]). Accordingly, the judgment must be reversed and a new trial ordered, to bepreceded by an independent source hearing (see People v Gethers, 86 NY2d at163; People v Dobbins, 112AD3d 735, 738 [2013]; People v Breitenbach, 260 AD2d 389, 390 [1999];People v Wong, 223 AD2d 568, 569 [1996]).
In light of our determination, we need not reach the defendant's remainingcontentions. Rivera, J.P., Cohen, Hinds-Radix and Barros, JJ., concur.