PEOPLE v. BURROUGHS (2004)

Defendant appeals from a judgment convicting him, upon a jury verdict, of three counts each of forgery in the second degree (Penal Law § 170.10 [1] ) and petit larceny (§ 155.25) and one count of criminal possession of stolen property in the fourth degree (§ 165.45[2] ).   Supreme Court properly permitted the identification testimony of a prosecution witness because her out-of-court showup identification of defendant was confirmatory in nature (see People v. Hines, 265 A.D.2d 166, 697 N.Y.S.2d 2, lv. denied 94 N.Y.2d 881, 705 N.Y.S.2d 13, 726 N.E.2d 490).   The evidence at the Wade hearing established that the witness, an employee of Piercing Pagoda, had a significant amount of time to observe defendant and that their face-to-face interaction was sufficient to provide the witness with a basis independent of the showup identification to identify defendant in court as the man who used the stolen credit card (see People v. Davis, 289 A.D.2d 977, 734 N.Y.S.2d 791, lv. denied 98 N.Y.2d 636, 744 N.Y.S.2d 765, 771 N.E.2d 838).   The court therefore did not err in permitting the witness's identification of defendant in court as that man.   The court also properly permitted the testimony of another witness, an employee of Delaware Camera Mart, concerning his description of the man who used the stolen credit card (see People v. Fluitt, 80 N.Y.2d 949, 950, 590 N.Y.S.2d 870, 605 N.E.2d 357).   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), and 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: