THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. ORLANDO LOPEZ DEFENDANT APPELLANT (2011)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum:  On appeal from a judgment of County Court (Sirkin, J.) convicting him, upon his plea of guilty, of attempted robbery in the first degree (Penal Law §§ 110.00, 160.15[3] ), defendant contends that Supreme Court (Affronti, J.) erred in determining following a pretrial hearing that the victim had an independent basis for his in-court identification of defendant.   We reject that contention.   Factors to consider in determining whether there is an independent basis for an in-court identification despite the use of otherwise improper identification procedures include “the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation” (Neil v. Biggers, 409 U.S. 188, 199–200;  see People v. Smart, 305 A.D.2d 1110, lv denied 100 N.Y.2d 566).   The People must establish the existence of an independent basis for the identification by clear and convincing evidence (see People v. Chipp, 75 N.Y.2d 327, 335, cert denied 498 U.S. 833), and the suppression court's decision will not be disturbed if it is supported by “sufficient evidence” in the record (People v. Yukl, 25 N.Y.2d 585, 588, cert. denied 400 U.S. 851;  see also People v. Youngblood, 294 A.D.2d 954, 955, lv denied 98 N.Y.2d 704).   Here, there is ample evidence that the victim had an independent basis for identifying defendant.   The victim testified that he viewed the perpetrator face-to-face for 30 to 45 seconds in a well-lit area, and the victim's description of the perpetrator was sufficiently specific to establish that he had a clear view of him at the time of the crime (see People v. Tindale, 295 A.D.2d 987, lv. denied 98 N.Y.2d 714;  People v. Bostic [appeal No. 2], 222 A.D.2d 1073, lv denied 88 N.Y.2d 876;  People v. Neese, 138 A.D.2d 531).

Patricia L. Morgan

Clerk of the Court