PEOPLE v. JOHNSON (1998)

Judgment, Supreme Court, New York County (Nicholas Figueroa, J., at pretrial hearings;  Alfred Donati, J., at jury trial and sentence), rendered January 12, 1995, convicting defendant of two counts of robbery in the first degree, and sentencing him, as a second violent felony offender, to concurrent terms of 10 to 20 years, unanimously affirmed.

 The record supports the hearing court's finding that the complainant's extended, closeup and unobstructed observations of defendant, under good lighting conditions, both before and during the robbery, provided sufficient basis for the complainant's in-court identification of defendant, independent of the tainted lineup procedure (see, People v. Montgomery, 205 A.D.2d 259, 261, 618 N.Y.S.2d 328, aff'd 88 N.Y.2d 1041, 650 N.Y.S.2d 632, 673 N.E.2d 917).   The hearing court appropriately exercised its discretion in denying defendant's application, in connection with the independent source issue, to present pedigree data that had already been brought to the court's attention and which, in the circumstances, would not have given the court reason to alter its original decision (see, People v. Anthony, 165 A.D.2d 876, 560 N.Y.S.2d 348, lv. denied 77 N.Y.2d 903, 569 N.Y.S.2d 935, 572 N.E.2d 618).

 According due deference to the hearing court's credibility determinations (see, People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380), the record supports the court's determination that defendant's statement to the police was spontaneous and not the product of police interrogation or the functional equivalent thereof (see, People v. Gonzales, 75 N.Y.2d 938, 940, 555 N.Y.S.2d 681, 554 N.E.2d 1269, cert. denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70).

 Since defendant did not proceed pro se at trial, but rather participated in his defense by submitting questions for his counsel to pose to various witnesses, and by offering supplemental argument for the court's consideration, the court's advice to defendant, who indicated experience with courtroom procedure, that pro se representation involved risks that would best be handled by his experienced attorney, sufficed to protect defendant's interests (see, People v. Cabassa, 79 N.Y.2d 722, 730-731, 586 N.Y.S.2d 234, 598 N.E.2d 1, cert. denied 506 U.S. 1011, 113 S.Ct. 633, 121 L.Ed.2d 563;  see also, People v. Timmons, 199 A.D.2d 8, 604 N.Y.S.2d 99, lv. denied 83 N.Y.2d 811, 611 N.Y.S.2d 147, 633 N.E.2d 502).

We have reviewed defendant's remaining contentions and find them to be without merit.

MEMORANDUM DECISION.