PEOPLE v. JEROLD (2000)

County Court properly denied defendant's motion to suppress the identification testimony of the victim's wife.   The People met their initial burden of establishing that the conduct of the police was reasonable and that the photo array was not unduly suggestive, and defendant failed to meet his “ultimate burden of proving that the procedure was unduly suggestive” (People v. Chipp, 75 N.Y.2d 327, 335, 553 N.Y.S.2d 72, 552 N.E.2d 608, cert. denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70;  see, People v. Lee, 207 A.D.2d 953, 617 N.Y.S.2d 81, lv. denied 85 N.Y.2d 864, 624 N.Y.S.2d 383, 648 N.E.2d 803).  “[G]iven that defendant had already been identified” by the witness, the fact that she subsequently viewed the photo array and another photograph of defendant prior to testifying constituted proper trial preparation and did not taint her in-court identification of defendant (People v. Morales, 248 A.D.2d 173, 670 N.Y.S.2d 768, lv. denied 92 N.Y.2d 857, 677 N.Y.S.2d 88, 699 N.E.2d 448, citing People v. Herner, 85 N.Y.2d 877, 626 N.Y.S.2d 54, 649 N.E.2d 1198). In any event, there was an independent basis for the in-court identification (see, People v. Chipp, supra, at 335, 553 N.Y.S.2d 72, 552 N.E.2d 608).

The conviction is supported by legally sufficient evidence and the verdict is not against the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   The sentence is neither unduly harsh nor severe.

Judgment unanimously affirmed.

MEMORANDUM: