PEOPLE v. DURHAM (1997)

Appeal from a judgment of the County Court of Washington County (Berke, J.), rendered July 25, 1995, convicting defendant upon his plea of guilty of the crime of petit larceny.

 In entering his plea of guilty to one count of petit larceny, defendant admitted that on April 3, 1994 he cashed a stolen check at a supermarket located in the Town of Greenwich, Washington County.   On appeal defendant contends that County Court erred in refusing to suppress the in-court identification of him made by the store clerk who cashed the check.   We disagree.

 Even accepting that a prior photo identification was unduly suggestive and thereby tainted (see, 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;  People v. Adams, 53 N.Y.2d 241, 250-251, 440 N.Y.S.2d 902, 423 N.E.2d 379), the prosecution satisfied its burden of proving by clear and convincing evidence that the witness's in-court identification had an independent origin, untainted by police procedure, so as to make it admissible (see, People v. Porpeglia, 167 A.D.2d 727, 563 N.Y.S.2d 298, lv. denied 77 N.Y.2d 965, 570 N.Y.S.2d 499, 573 N.E.2d 587;  see also, People v. Brooks, 210 A.D.2d 800, 621 N.Y.S.2d 701, lv. denied 85 N.Y.2d 906, 627 N.Y.S.2d 329, 650 N.E.2d 1331).   The clerk identified defendant in open court as the individual who cashed the check.   She testified that she had a good view of defendant for a few minutes and that the store was well lit.   She also testified that she had seen him on more than one occasion with someone else to cash checks.   Although she could not remember whether these other occasions were before or after the April 3, 1994 incident, she testified that she knew defendant from these encounters.   She also stated that the other encounters took place before she was contacted by the police concerning defendant's actions.   The circumstances surrounding the in-court identification merely go to the weight of the witness's testimony and not its admissibility, and were properly left to the trier of fact to resolve (see, People v. Harris, 191 A.D.2d 901, 594 N.Y.S.2d 914, lv. denied 81 N.Y.2d 1073, 601 N.Y.S.2d 593, 619 N.E.2d 671;  People v. Mure, 129 A.D.2d 862, 513 N.Y.S.2d 890, lv. denied 70 N.Y.2d 802, 522 N.Y.S.2d 120, 516 N.E.2d 1233).  Defendant's remaining contentions in this regard have been examined and rejected as unpersuasive.

ORDERED that the judgment is affirmed.

CARPINELLO, Justice.

WHITE, J.P., and CASEY, PETERS and SPAIN, JJ., concur.