PEOPLE v. KILPATRICK (2006)

Judgment, Supreme Court, New York County (Bernard J. Fried, J.), rendered October 31, 2003, convicting defendant, upon his plea of guilty, of attempted robbery in the first degree, and sentencing him, as a second felony offender, to a term of 5 years, unanimously affirmed.

Even if we were to find that defendant's waiver of his right to appeal was invalid and that the victim's viewing of a single photograph of defendant was unduly suggestive, we would find that the record supports the hearing court's independent source finding (see Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 [1972];  People v. Williams, 222 A.D.2d 149, 646 N.Y.S.2d 665 [1996], lv. denied 88 N.Y.2d 1072, 651 N.Y.S.2d 416, 674 N.E.2d 346 [1996] ).   The victim had an extensive opportunity to observe defendant before and during the lengthy robbery, and she was able to provide a reasonably detailed description.   The evidence does not support defendant's assertion that the victim was primarily focused on defendant's knife.