PEOPLE v. DAVIS (2001)

 Defendant appeals from a judgment convicting him following a jury trial of burglary in the second degree (Penal Law §§ 20.00, 140.25 [2] ) and grand larceny in the fourth degree (Penal Law §§ 20.00, 155.30[1] ).   We reject defendant's contention that the pretrial identification of defendant by a prosecution witness should have been suppressed and that the witness's subsequent in-court identification should not have been permitted.   The witness identified defendant in a photo array, two subsequent lineups and at trial, based upon her having seen defendant at the victim's home around the time of the burglary.   Defendant failed to meet his “ultimate burden of proving that the procedure[s were] 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).   In any event, the witness had an independent basis for her in-court identification because she had seen defendant on a daily basis when he lived at the residence where the burglary occurred (see, People v. Beltran, 281 A.D.2d 934, 935, 722 N.Y.S.2d 853, lv. denied 96 N.Y.2d 898, 730 N.Y.S.2d 795, 756 N.E.2d 83).   Contrary to defendant's further contention, County Court properly permitted the People to present the testimony of an alibi rebuttal witness despite their failure to comply with the notice requirements set forth in CPL 250.20(2) where, as here, defendant did not request an adjournment (see, CPL 250.20[3], [4] ) and failed to establish prejudice (see, People v. Wiener, 271 A.D.2d 319, 707 N.Y.S.2d 150, lv. denied 95 N.Y.2d 872, 715 N.Y.S.2d 228, 738 N.E.2d 376). We also reject the contention of defendant that he was denied effective assistance of counsel (see generally, People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584;  People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).   The sentence is not unduly harsh or severe.

Judgment unanimously affirmed.

MEMORANDUM: