PEOPLE v. DELL (2004)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Marrus, J.), rendered April 8, 2002, convicting him of burglary in the first degree and robbery in the first degree, upon a jury verdict, and sentencing him to two consecutive definite terms of imprisonment of 17 years.   The appeal brings up for review the denial, after a hearing (Collini, J.), of that branch of the defendant's omnibus motion which was to suppress identification testimony.

ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by providing that the sentences are to run concurrently;  as so modified, the judgment is affirmed.

 The Supreme Court properly declined to suppress the in-court identification of the defendant by two of the victims.   The testimony at an independent source hearing established that the victims had multiple opportunities to observe the defendant at close range for a lengthy period of time during the commission of the crime.   Therefore, the Supreme Court correctly determined that there was an independent source for the identifications (see People v. Paris, 2 A.D.3d 881, 769 N.Y.S.2d 741;  People v. Brown, 293 A.D.2d 686, 741 N.Y.S.2d 791;  Matter of Anthony W., 284 A.D.2d 473, 726 N.Y.S.2d 450).

 Since the defendant successfully moved to suppress evidence of the pretrial lineup and the witness involved did not identify the defendant in court, it was not error for the Supreme Court to preclude the defendant from eliciting testimony regarding the witness's misidentification of a filler at the lineup (cf. People v. Jones, 154 A.D.2d 396, 545 N.Y.S.2d 784).

 The defendant's contention that the Supreme Court erred in failing to give a missing witness charge with respect to one of the victims of the crime is not preserved for appellate review (see CPL 470.05[2];  People v. Thompson, 286 A.D.2d 453, 730 N.Y.S.2d 236;  People v. Buster, 245 A.D.2d 460, 461, 666 N.Y.S.2d 462;  People v. Russell, 209 A.D.2d 650, 651, 619 N.Y.S.2d 122).   Although the defense counsel asserted that he might request such a charge, the record indicates that he never requested that charge.   In any event, the witness was made available to the defense and, in fact, testified as part of the defendant's case that he could not identify the defendant as one of the perpetrators of the crime (see People v. Costa, 183 A.D.2d 722, 723, 583 N.Y.S.2d 301).   It cannot be said that the defendant would have obtained a greater benefit had the jury been permitted to consider the adverse inference contained in the missing witness charge (see People v. Gonzalez, 68 N.Y.2d 424, 427, 509 N.Y.S.2d 796, 502 N.E.2d 583).

 The sentence imposed was excessive to the extent indicated herein.

The defendant's remaining contentions, including those raised in his supplemental pro se brief, are without merit.