People v. Tomilin

131 A.D.2d 897, 517 N.Y.S.2d 253, 1987 N.Y. App. Div. LEXIS 48333

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 29, 1987
• Status: Published

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Bourgeois, J.), rendered October 30, 1985, convicting him of robbery in the first degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree (three counts), 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 evidence.

Ordered that the judgment is affirmed.

We reject the defendant’s contention that the prosecution failed to establish by clear and convincing evidence that an independent source existed sufficient to sustain an in-court identification by the complainant not tainted by the on-the-scene showup. At the Wade hearing, the complainant testified that he saw the defendant twice on the date of the incident. The first time he saw the defendant, he observed him for about two minutes under well-lit conditions, separated only by the counter behind which the complainant was working. The second time he observed the defendant was at the time of the robbery, which lasted about five minutes under the same lighting conditions. The complainant was separated from the defendant by a distance of only about 15 feet. In view of this uncontradicted testimony, the record supports the court’s finding of an adequate independent source for the complainant’s in-court identification (see, Matter of Michael J., 117 AD2d 602; People v Smalls, 112 AD2d 173). Mangano, J. P., Niehoff, Kooper and Spatt, JJ., concur.