PEOPLE v. WOODY (2018)

MEMORANDUM AND ORDER

On appeal from a judgment convicting him, upon his plea of guilty, of murder in the first degree (Penal Law § 125.27[1][a][vii];  [b] ), defendant contends that Supreme Court erred in denying his motion to suppress identification testimony on the ground that the photo array used in the identification procedure was unduly suggestive.  The record reflects that the court did not make a determination regarding the suggestive nature of the array and instead went on to determine that the witness had an independent basis for identifying defendant.  Thus, defendant forfeited his contention regarding suggestiveness by pleading guilty before the court issued a ruling on that contention (see People v. Harris, 143 A.D.3d 911, 912, 38 N.Y.S.3d 919 [2d Dept. 2016], lv. denied 28 N.Y.3d 1124, 51 N.Y.S.3d 21, 73 N.E.3d 361 [2016];  People v. Newkirk, 133 A.D.3d 1364, 1365, 20 N.Y.S.3d 507 [4th Dept. 2015], lv denied 26 N.Y.3d 1148, 32 N.Y.S.3d 62, 51 N.E.3d 573 [2016] ).

Furthermore, even if defendant's contention that the photo array was unduly suggestive was implicitly rejected by the court (see People v. Gates, 152 A.D.3d 1222, 1223, 59 N.Y.S.3d 636 [4th Dept 2017];  People v. Hampton, 113 A.D.3d 1131, 1132, 977 N.Y.S.2d 859 [2014], lv denied 22 N.Y.3d 1199, 986 N.Y.S.2d 419, 9 N.E.3d 914 [2014], reconsideration denied 23 N.Y.3d 1062, 994 N.Y.S.2d 321, 18 N.E.3d 1142 [2014], cert denied ––– U.S. ––––, 135 S.Ct. 2389, 192 L.Ed.2d 174 [2015] ), and thus defendant's contention that the court should have granted his suppression motion based thereon survives his guilty plea (see CPL 710.70[2] ), we reject that contention.  “[W]hen an identification is the product of a suggestive pretrial identification procedure, a witness will nonetheless be permitted to identify a defendant in court if that identification is based upon an independent source” (People v. Campbell, 200 A.D.2d 624, 625, 606 N.Y.S.2d 736 [2d Dept. 1994], lv denied 83 N.Y.2d 869, 613 N.Y.S.2d 130, 635 N.E.2d 299 [1994];  see People v. Carson, 122 A.D.3d 1391, 1391, 997 N.Y.S.2d 881 [4th Dept. 2014], lv denied 25 N.Y.3d 1161, 15 N.Y.S.3d 293, 36 N.E.3d 96 [2015] ).  Here, after conducting a hearing and reviewing the appropriate factors (see Neil v. Biggers, 409 U.S. 188, 199–200, 93 S.Ct. 375, 34 L.Ed.2d 401 [1972];  People v. Lopez, 85 A.D.3d 1641, 1641, 924 N.Y.S.2d 871 [4th Dept. 2011], lv denied 17 N.Y.3d 860, 932 N.Y.S.2d 25, 956 N.E.2d 806 [2011] ), the court properly determined that the People established the existence of an independent source by the requisite clear and convincing evidence (see generally People v. Chipp, 75 N.Y.2d 327, 335, 553 N.Y.S.2d 72, 552 N.E.2d 608 [1990], cert denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70 [1990] ).

The sentence is not unduly harsh or severe.

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

Memorandum: