Opinion
February 4, 1985
Appeal from the Supreme Court, Kings County (Kuffner, J.).
Judgment modified, on the law, by vacating the sentence and remitting the matter to the Supreme Court, Kings County, for the resentencing of defendant as a second violent felony offender pursuant to Penal Law § 70.04. As so modified, judgment affirmed.
The Judge presiding at the Wade hearing properly denied the defense motion to suppress the identification testimony of the only eyewitness to the robbery who testified at the trial, as the photographs of the lineup in which he identified defendant revealed that this pretrial identification procedure was conducted fairly and was not unduly suggestive. Under the facts of the instant case, there is no merit to the defense contention that the failure of the People to call the identifying witness at the Wade hearing constitutes reversible error. On a motion to suppress eyewitness identification testimony, the defense bears the over-all burden of proof to establish that a pretrial identification procedure was unduly suggestive ( see, People v Sutton, 47 A.D.2d 455; People v Carter, 117 Misc.2d 4, 13; see also, People v Berrios, 28 N.Y.2d 361, 367), once, as in the instant case, the People have met their initial burden of going forward to establish the reasonableness of the police conduct and the lack of suggestiveness of the pretrial identification procedures. In such a case, no reversible error is committed if the People fail to call the identifying witness at the Wade hearing ( see, People v Sutton, supra, p 459; People v Carter, supra). It is only when the defense has established that a pretrial identification was so impermissibly suggestive as to deny the defendant due process of law that the burden of proof shifts to the People to demonstrate, by clear and convincing evidence that the eyewitness' in-court identification of defendant was based upon a source independent of the tainted procedure ( see, People v Rahming, 26 N.Y.2d 411, 417; People v Sutton, supra, p 460).
The Trial Judge did not commit reversible error by omitting from his detailed charge on evaluating the accuracy and reliability of the eyewitness identification testimony ( see, People v Daniels, 88 A.D.2d 392, 401-402), the fact that the lineup took place approximately six months after the robbery. The identification charge delivered at bar was substantially more detailed than the charge in People v Whalen ( 59 N.Y.2d 273, 279), informing the jury that the People must establish the identity of the defendant beyond a reasonable doubt, which the Court of Appeals has held is "technically correct". Further, the evidence adduced at the trial was sufficient to establish defendant's guilt beyond a reasonable doubt ( see, People v Joyiens, 39 N.Y.2d 197). The Judge's ruling at the Sandoval hearing that the prosecutor would be allowed to cross-examine defendant, if he took the stand, with regard to two prior felony convictions and one prior misdemeanor conviction, without mentioning the underlying charges involved, was properly arrived at and designed to minimize any prejudicial impact upon the defendant ( see, People v Handly, 96 A.D.2d 649; People v Hicks, 88 A.D.2d 519).
The People properly concede that defendant was erroneously sentenced as a persistent violent felony offender pursuant to Penal Law § 70.08. In People v Morse ( 62 N.Y.2d 205) the Court of Appeals held that, in order for a defendant to be sentenced as a persistent violent felony offender, the sentence for each of the predicate violent felony offenses must have been imposed prior to the commission of the next predicate offense ( see, Penal Law § 70.08 [a]; § 70.04 [1] [b] [ii]). This requirement was not fulfilled at bar, as defendant's two prior convictions of violent felony offenses resulted from guilty pleas to separate indictments entered on the same day and he received concurrent one-year prison sentences for both charges on another date. Therefore, these two convictions must be considered one predicate violent felony offense pursuant to People v Morse ( supra) and the matter must be remitted to the Supreme Court, Kings County, for the resentencing of defendant as a second violent felony offender pursuant to Penal Law § 70.04. Mollen, P.J., Titone, Thompson and Bracken, JJ., concur.