Reset A A Font size: Print

Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Michael PENDERGRASS, Defendant-Appellant.

Decided: May 18, 2000

WILLIAMS, J.P., TOM, MAZZARELLI and BUCKLEY, JJ. Susan Gliner, for Respondent. Svetlana M. Kornfeind, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Mary McGowan Davis, J.), rendered October 22, 1996, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to a term of 18 years to life, unanimously affirmed.

The verdict was supported by legally sufficient evidence and was not against the weight of the evidence.   There is no basis upon which to disturb the jury's determinations concerning credibility and identification.

The court properly found that the People established by clear and convincing evidence that there was an independent source for a witness's identification of defendant at trial.   Although the witness observed defendant in the courtroom only a few hours before her trial testimony, and the court found this inadvertent identification procedure to be unduly suggestive, there was clear and convincing evidence that she had an independent source for her identification.   The witness had an extensive, close-range opportunity to observe defendant, was able to provide a detailed description of the perpetrator to the police and indicated at the time of the crime that she would be able to identify the perpetrator (see, People v. Williams, 222 A.D.2d 149, 646 N.Y.S.2d 665, lv. denied 88 N.Y.2d 1072, 651 N.Y.S.2d 416, 674 N.E.2d 346).   The record supports the court's credibility determinations made in connection with its finding of independent source.