PEOPLE v. FOUNTAINE III (2004)

 Supreme Court (Kenneth R. Fisher, J.) properly denied defendant's motion to suppress identification testimony.   Although the witness's identification of defendant from a photo array was improperly influenced by the presence of another person simultaneously viewing the array (see People v. Fernandez, 82 A.D.2d 922, 923, 440 N.Y.S.2d 677), the People established an independent basis for the in-court identification of defendant by that witness.   The witness was familiar with defendant, having seen him in the neighborhood on numerous prior occasions (see People v. Rodriguez, 177 A.D.2d 664, 665, 577 N.Y.S.2d 71, lv. denied 79 N.Y.2d 1006, 584 N.Y.S.2d 461, 594 N.E.2d 955;  People v. Pittman, 159 A.D.2d 594, 595, 552 N.Y.S.2d 452, lv. denied 76 N.Y.2d 794, 559 N.Y.S.2d 999, 559 N.E.2d 693;  People v. Kolomick, 132 A.D.2d 677, 678, 518 N.Y.S.2d 46, lv. denied 70 N.Y.2d 875, 523 N.Y.S.2d 503, 518 N.E.2d 14), and on the night of the robbery she observed him for several minutes from a short distance under good lighting conditions (see People v. Martin, 305 A.D.2d 427, 427-428, 759 N.Y.S.2d 176, lv. denied 1 N.Y.3d 576, 775 N.Y.S.2d 792, 807 N.E.2d 905).   We reject the further contention of defendant that County Court (Patricia D. Marks, J.) illegally resentenced him to a term of 18 years after imposing a term of eight years.   Upon recognizing that the sentencing minutes did not accurately reflect the sentence it intended to impose, the court properly exercised its inherent power to correct the error (see People v. Minaya, 54 N.Y.2d 360, 364-365, 445 N.Y.S.2d 690, 429 N.E.2d 1161, cert. denied 455 U.S. 1024, 102 S.Ct. 1725, 72 L.Ed.2d 144).   The sentence is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: