| People v Woody |
| 2018 NY Slip Op 02924 [160 AD3d 1362] |
| April 27, 2018 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Eric Woody, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Craig P. Schlanger of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Nicole K. Intschert of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti, A.J.),rendered November 17, 2014. The judgment convicted defendant, upon his plea of guilty, ofmurder in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him, upon his plea of guilty, of murderin the first degree (Penal Law § 125.27 [1] [a] [vii]; [b]), defendant contends thatSupreme Court erred in denying his motion to suppress identification testimony on the groundthat the photo array used in the identification procedure was unduly suggestive. The recordreflects that the court did not make a determination regarding the suggestive nature of the arrayand instead went on to determine that the witness had an independent basis for identifyingdefendant. Thus, defendant forfeited his contention regarding suggestiveness by pleading guiltybefore the court issued a ruling on that contention (see People v Harris, 143 AD3d 911, 912 [2d Dept 2016], lvdenied 28 NY3d 1124 [2016];People v Newkirk, 133 AD3d 1364, 1365 [4th Dept 2015], lv denied 26 NY3d1148 [2016]).
Furthermore, even if defendant's contention that the photo array was unduly suggestive wasimplicitly rejected by the court (seePeople v Gates, 152 AD3d 1222, 1223 [4th Dept 2017]; People v Hampton, 113 AD3d1131, 1132 [2014], lv denied 22 NY3d 1199 [2014], denied reconsideration23 NY3d 1062 [2014], cert denied 575 US &mdash, 135 S Ct 2389 [2015]), and thusdefendant's contention that the court should have granted his suppression motion based thereonsurvives his guilty plea (see CPL 710.70 [2]), we reject that contention. "[W]hen anidentification is the product of a suggestive pretrial identification procedure, a witness willnonetheless be permitted to identify a defendant in court if that identification is based upon anindependent source" (People v Campbell, 200 AD2d 624, 625 [2d Dept 1994], lvdenied 83 NY2d 869 [1994]; seePeople v Carson, 122 AD3d 1391, 1391 [4th Dept 2014], lv denied 25 NY3d1161 [2015]). Here, after conducting a hearing and reviewing the appropriate factors (see Neilv Biggers, 409 US 188, 199-200 [1972]; People v Lopez, 85 AD3d 1641, 1641 [4th Dept 2011], lvdenied 17 NY3d 860 [2011]), the court properly determined that the People established theexistence of an independent source by the requisite clear and convincing evidence (seegenerally People v Chipp, 75 NY2d 327, 335 [1990], cert denied 498 US 833[1990]).
The sentence is not unduly harsh or severe. Present—Smith, J.P., Peradotto, Lindley,Curran and Winslow, JJ.