PEOPLE v. GERMAN (2000)

Judgment, Supreme Court, Bronx County (Robert Cohen, J.), rendered September 13, 1996, convicting defendant, after a jury trial, of murder in the second degree (two counts), and burglary in the first degree, and sentencing him to two consecutive terms of 25 years to life and a concurrent term of 8 1/3 to 25 years, respectively, unanimously affirmed.

 The verdict was not against the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Issues of credibility and identification were properly presented to the jury and we find no reason to disturb its determinations.   On the contrary, we find the evidence to be overwhelming, particularly in view of defendant's detailed confession to a childhood friend, where the record provides no other explanation of how the friend could have learned the precise details of the crime.

 Following a Wade hearing that resulted in the suppression of a victim's line-up identification, an independent source hearing was held and the court correctly determined that the People proved by clear and convincing evidence that the in-court identification was based on the victim's independent observation of defendant.   During the commission of the crimes, the victim had unobstructed views of the defendant's face and his description was sufficiently specific as to establish independent source (see, People v. Williams, 222 A.D.2d 149, 646 N.Y.S.2d 665, lv. denied 88 N.Y.2d 1072, 651 N.Y.S.2d 416, 674 N.E.2d 346).

 We conclude that any error in the court's rejection of defendant's request for a missing witness charge was harmless (see, People v. Fields, 76 N.Y.2d 761, 559 N.Y.S.2d 951, 559 N.E.2d 645).   Defendant was permitted to comment in summation on the witness's absence and, as previously noted, the evidence was overwhelming.

MEMORANDUM DECISION.