People v. Cotto

268 A.D.2d 441, 701 N.Y.S.2d 635, 2000 N.Y. App. Div. LEXIS 169

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 10, 2000
• Status: Published

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Demarest, J.), rendered April 7, 1998, convicting him of robbery in the first degree and resisting arrest, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress identification testimony.

Ordered that the judgment is affirmed.

The defendant contends that the in-court identification testimony was improper because it was based upon impermissibly suggestive pretrial identification procedures. An in-court identification of a defendant by an eyewitness is proper, notwithstanding unduly suggestive pretrial identification procedures, where it is based upon the eyewitness’s independent observation of the defendant (see, People v Brown, 187 AD2d 662, 663). There was sufficient evidence at the independent source hearing to support a determination that the eyewitness had an adequate opportunity to observe the defendant, and thus the in-court identification was proper.

The sentence imposed was not excessive (see, People v Suitte, 90 AD2d 80). Ritter, J. P., Altman, Schmidt and Smith, JJ., concur.