PEOPLE v. GUTIERREZ (1997)

Judgment, Supreme Court, Bronx County (Joseph Mazur, J.), rendered May 10, 1994, convicting defendant, after a jury trial, of robbery in the first degree and attempted robbery in the first degree, and sentencing him to concurrent terms of 8 to 16 years and 2 1/3 to 7 years, respectively, unanimously affirmed.

 The hearing court properly found that the People established by clear and convincing evidence that there was an independent source for the identification of defendant at trial.   At the independent source hearing, the witness testified that he had an unobstructed view of defendant and defendant's accomplice when they flagged him down for a cab ride.   The witness also had an opportunity to observe defendant when he looked at him through his rear view mirror and when he turned around to retrieve his fare.   Finally, the witness testified that he had gotten a “good look” at defendant while defendant was attempting to start the cab and drive away without him.   The time during which the witness observed defendant prior to and during the robbery, which lasted approximately two to three minutes, was sufficient to establish an independent source (People v. Williams, 222 A.D.2d 149, 646 N.Y.S.2d 665).

 Defendant's claim that the court should have given a sua sponte instruction on the affirmative defense to robbery in the first degree under Penal Law § 160.15(4) is without merit (People v. Baker, 209 A.D.2d 293, 618 N.Y.S.2d 368, lv. denied 84 N.Y.2d 1028, 623 N.Y.S.2d 184, 647 N.E.2d 456).

MEMORANDUM DECISION.