Summary
In Ramos, the People, under direction of the local court, produced a witness at a pretrial Wade hearing who had been subject to no previous pretrial identification procedure during a 10-month interval between the alleged crime and the hearing.
Summary of this case from People v. SmithOpinion
Argued April 27, 1977
Decided June 2, 1977
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, JOSEPH R. CORSO, J.
Jo Ann Davis and William E. Hellerstein for appellant.
Eugene Gold, District Attorney (Ellen M. Coin of counsel), for respondent.
MEMORANDUM.
In light of the invulnerable finding that the witness Carmen Jiminez had ample opportunity to observe the defendant at the time of the burglary, we hold that her in-court identification of the defendant had an independent source and was not tainted by any suggestive identification at the station house (see People v Cobenais, 39 N.Y.2d 968; People v Carter, 30 N.Y.2d 279, 283; cf. Neil v Biggers, 409 U.S. 188, 199-201).
We also reject the defendant's claim, made at the Appellate Division and in this court, that the in-court identification by the witness Norma Jiminez was tainted by a suggestive confrontation while testifying at the identification suppression hearing. The hearing Judge, who, of course, was afforded the opportunity to observe her while she testified, found that her identification was the product of her own independent recollection and was not tainted by any improper confrontation. This finding, too, was affirmed by the Appellate Division. It is of interest to also note that when asked at the hearing if she saw the man who perpetrated the crime in the courtroom, and when she then identified the defendant, no question was then raised as to the propriety of this procedure.
Finally, we find no merit to defendant's contention that the Trial Judge improperly marshaled the evidence (compare People v Bell, 38 N.Y.2d 116).
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER and FUCHSBERG concur; Judge COOKE dissents and votes to reverse for the reasons stated in the dissenting memorandum by Mr. Justice CHARLES MARGETT at the Appellate Division ( 52 A.D.2d 640 -645).
Order affirmed in a memorandum.