LOPEZ, ORLANDO, PEOPLE v ( 2011 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
805
KA 09-02439
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, AND SCONIERS, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
ORLANDO C. LOPEZ, DEFENDANT-APPELLANT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID M. ABBATOY, JR.,
OF COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (LESLIE E. SWIFT OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Monroe County Court (Stephen R.
Sirkin, J.), rendered January 29, 2008. The judgment convicted
defendant, upon his plea of guilty, of attempted robbery in the first
degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: On appeal from a judgment of County Court (Sirkin,
J.) convicting him, upon his plea of guilty, of attempted robbery in
the first degree (Penal Law §§ 110.00, 160.15 [3]), defendant contends
that Supreme Court (Affronti, J.) erred in determining following a
pretrial hearing that the victim had an independent basis for his in-
court identification of defendant. We reject that contention.
Factors to consider in determining whether there is an independent
basis for an in-court identification despite the use of otherwise
improper identification procedures include “the opportunity of the
witness to view the criminal at the time of the crime, the witness’
degree of attention, the accuracy of the witness’ prior description of
the criminal, the level of certainty demonstrated by the witness at
the confrontation, and the length of time between the crime and the
confrontation” (Neil v Biggers, 409 US 188, 199-200; see People v
Smart, 305 AD2d 1110, lv denied 100 NY2d 566). The People must
establish the existence of an independent basis for the identification
by clear and convincing evidence (see People v Chipp, 75 NY2d 327,
335, cert denied 498 US 833), and the suppression court’s decision
will not be disturbed if it is supported by “sufficient evidence” in
the record (People v Yukl, 25 NY2d 585, 588, cert denied 400 US 851;
see also People v Youngblood, 294 AD2d 954, 955, lv denied 98 NY2d
704). Here, there is ample evidence that the victim had an
independent basis for identifying defendant. The victim testified
that he viewed the perpetrator face-to-face for 30 to 45 seconds in a
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KA 09-02439
well-lit area, and the victim’s description of the perpetrator was
sufficiently specific to establish that he had a clear view of him at
the time of the crime (see People v Tindale, 295 AD2d 987, lv denied
98 NY2d 714; People v Bostic [appeal No. 2], 222 AD2d 1073, lv denied
88 NY2d 876; People v Neese, 138 AD2d 531).
Entered: June 10, 2011 Patricia L. Morgan
Clerk of the Court