Opinion
July 12, 1985
Appeal from the Cayuga County Court, Contiguglia, J.
Present — Dillon, P.J., Callahan, Doerr, Boomer and Schnepp, JJ.
Judgment unanimously affirmed. Memorandum: The identification of defendant, while he was waiting to testify before the Grand Jury, was inadvertent, was not occasioned by improper conduct on the part of law enforcement officials and did not violate his right to due process ( see, People v. Logan, 25 N.Y.2d 184, 193, cert denied 396 U.S. 1020; see also, People v. Collins, 60 N.Y.2d 214, 218). Further, his right to counsel, which had attached ( see, People v. Samuels, 49 N.Y.2d 218), was not violated since his attorney was present at the time the identification was made. In any event, his in-court identification was based on an untainted source ( see, People v. Adams, 53 N.Y.2d 241, 249-250). Moreover, the court acted in good faith and properly admitted into evidence the videotaped testimony of a prosecution witness who appeared to be unavailable to testify at trial. The accuracy and integrity of the videotape was not questioned. The taping was under the control and supervision of the Trial Judge, in the presence of defendant and his attorney, who was given an unimpeded opportunity, which he fully exercised, to cross-examine the witness ( see, People v. Winborne, 90 Misc.2d 71; Ann., 60 ALR3d 333, § 10, at 345). Finally, in view of defendant's prior criminal record, we see no abuse of discretion in the trial court's sentence.