Opinion
November 1, 1973
Appeal from a judgment of the County Court of Albany County, rendered January 24, 1973, upon a verdict convicting defendant of the crime of robbery in the first degree. The only issue raised is whether the lower court properly concluded that the victim's in-court identification of the defendant was not tainted by an unnecessarily suggestive pretrial showup and photographic identification. Artie Green, the proprietor of a liquor store, testified that the defendant and a companion entered his store and purchased a bottle of wine. They departed but returned shortly and asked for another bottle. Mr. Green recognized them from their earlier visit. While he was in the process of fetching the second bottle for them, the defendant put a gun to his head and subsequently robbed him. In all, Mr. Green observed the defendant for about 10 minutes at close range in a brightly lit store. Approximately two months later, he picked out defendant's photograph from a group of 13 others and identified defendant as he sat alone in a room at police headquarters. Following a hearing, the County Court suppressed the pretrial identifications but concluded that Mr. Green could make an in-court identification of the defendant as he had an ample opportunity to observe the defendant during the latter's two visits to the store. This finding is supported by the evidence which clearly demonstrates an independent and untainted basis for the in-court identification ( People v. Tillman, 32 N.Y.2d 683; People v. Carter, 30 N.Y.2d 279, 282-283). Judgment affirmed. Herlihy, P.J., Greenblott, Cooke, Sweeney and Reynolds, JJ., concur.