PEOPLE v. SMALL

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The PEOPLE, etc., respondent, v. Omar SMALL, appellant.

Decided: October 30, 2013

RANDALL T. ENG, P.J., RUTH C. BALKIN, PLUMMER E. LOTT, and SHERI S. ROMAN, JJ. Lynn W.L. Fahey, New York, N.Y. (Allegra Glashausser of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Sholom J. Twersky of counsel; Brandon D. O'Neil on the brief), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Gary, J.), rendered April 27, 2010, convicting him of robbery in the third degree and petit larceny, after a nonjury trial, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress identification testimony.

ORDERED that the judgment is affirmed.

The defendant contends that the Supreme Court erred in determining that there was an independent source for the victim's in-court identification of the defendant as her assailant. An in-court identification of a defendant by an eyewitness is proper, notwithstanding unduly suggestive pretrial identification procedures, where it is based upon the eyewitness's independent observation of the defendant (see People v. Paris, 2 A.D.3d 881, 769 N.Y.S.2d 741; People v. Cotto, 268 A.D.2d 441, 701 N.Y.S.2d 635; People v. Brown, 187 A.D.2d 662, 663, 590 N.Y.S.2d 896). The victim testified that she had a clear view of her assailant's face at very close range, under well-lit conditions, throughout the length of the commission of the crime and, as a result, she was able to give the police a description of the individual, which included details of his facial features, height, weight, and clothing (see People v. Colon, 32 A.D.3d 791, 821 N.Y.S.2d 203; People v. Brown, 293 A.D.2d 686, 741 N.Y.S.2d 791; People v. Price, 256 A.D.2d 596; People v. Quintichett, 210 A.D.2d 438, 439, 620 N.Y.S.2d 430; People v. Steward, 206 A.D.2d 397, 398, 614 N.Y.S.2d 56). Accordingly, the Supreme Court correctly determined that there was an independent source for the identification (see People v. Paris, 2 A.D.3d 881, 769 N.Y.S.2d 741; People v. Brown, 187 A.D.2d 662, 590 N.Y.S.2d 896), and properly denied that branch of the defendant's omnibus motion which was to suppress identification testimony.

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