In re Elias R.

Appellate Division of the Supreme Court of New York

In re Elias R.

33 A.D.3d 325, 821 N.Y.S.2d 582

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 3, 2006

StatusPublished

Cited by1 cases

This text of 33 A.D.3d 325 (In re Elias R.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Elias R., 33 A.D.3d 325, 821 N.Y.S.2d 582 (N.Y. Ct. App. 2006).

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Opinion

[326]*326Order of disposition, Family Court, Bronx County (Harold J. Lynch, J.), entered on or about December 1, 2004, which adjudicated appellant a juvenile delinquent, upon a fact-finding determination that he had committed acts which, if committed by an adult, would constitute the crimes of robbery in the second degree and attempted assault in the third degree, and placed him on probation for a period of 12 months, unanimously affirmed, without costs.

After suppressing out-of-court identifications as unduly suggestive, the court found there was an independent source for the victim’s in-court identification. That finding was amply supported by the evidence elicited at the hearing that the victim had seen appellant in school on three earlier occasions on the day he was attacked, and had been able to observe both “distinguishing” marks on one side of appellant’s neck and his unusual hairstyle on those occasions, as well as by the description the victim gave shortly after the attack. That the prior opportunities to observe were brief does not require a different determination, since “even a matter of a few seconds may suffice for independent source purposes” (People v Williams, 222 AD2d 149, 153-154 [1996], lv denied 88 NY2d 1072 [1996] [citation omitted]). That the victim did not see the side of appellant’s neck bearing the marks as appellant fled does not undermine the victim’s ability to recognize appellant as the same person he had seen on the earlier occasions that day.

The court’s determination upon the fact-finding hearing was based on legally sufficient evidence and was not against the weight of the evidence (see People v Bleakley, 69 NY2d 490 [1987]). Although each of the victim’s encounters with appellant was brief, these encounters were sufficient, under all the circumstances, to warrant the court’s conclusion that the victim had adequate opportunities to recognize appellant (see e.g. People v Hyatt, 162 AD2d 713 [1990], lv denied 76 NY2d 987 [1990]). Concur—Saxe, J.E, Marlow, Gonzalez, Catterson and McGuire, JJ.

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[326]*326Order of disposition, Family Court, Bronx County (Harold J. Lynch, J.), entered on or about December 1, 2004, which adjudicated appellant a juvenile delinquent, upon a fact-finding determination that he had committed acts which, if committed by an adult, would constitute the crimes of robbery in the second degree and attempted assault in the third degree, and placed him on probation for a period of 12 months, unanimously affirmed, without costs.

After suppressing out-of-court identifications as unduly suggestive, the court found there was an independent source for the victim’s in-court identification. That finding was amply supported by the evidence elicited at the hearing that the victim had seen appellant in school on three earlier occasions on the day he was attacked, and had been able to observe both “distinguishing” marks on one side of appellant’s neck and his unusual hairstyle on those occasions, as well as by the description the victim gave shortly after the attack. That the prior opportunities to observe were brief does not require a different determination, since “even a matter of a few seconds may suffice for independent source purposes” (People v Williams, 222 AD2d 149, 153-154 [1996], lv denied 88 NY2d 1072 [1996] [citation omitted]). That the victim did not see the side of appellant’s neck bearing the marks as appellant fled does not undermine the victim’s ability to recognize appellant as the same person he had seen on the earlier occasions that day.

The court’s determination upon the fact-finding hearing was based on legally sufficient evidence and was not against the weight of the evidence (see People v Bleakley, 69 NY2d 490 [1987]). Although each of the victim’s encounters with appellant was brief, these encounters were sufficient, under all the circumstances, to warrant the court’s conclusion that the victim had adequate opportunities to recognize appellant (see e.g. People v Hyatt, 162 AD2d 713 [1990], lv denied 76 NY2d 987 [1990]). Concur—Saxe, J.E, Marlow, Gonzalez, Catterson and McGuire, JJ.

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33 A.D.3d 325, 821 N.Y.S.2d 582, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-elias-r-nyappdiv-2006.

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