Citation Numbers： 235 A.D.2d 850, 653 N.Y.S.2d 391, 1997 N.Y. App. Div. LEXIS 555
Judges： Carpinello
Filed Date： 1/23/1997
Status： Precedential
Modified Date： 11/1/2024
Appeal from a judgment of the County Court of Washington County (Berke, J.), rendered July 25, 1995, convicting defendant upon his plea of guilty of the crime of petit larceny.
In entering his plea of guilty to one count of petit larceny, defendant admitted that on April 3, 1994 he cashed a stolen check at a supermarket located in the Town of Greenwich, Washington County. On appeal defendant contends that County Court erred in refusing to suppress the in-court identification of him made by the store clerk who cashed the check. We disagree.
Even accepting that a prior photo identification was unduly suggestive and thereby tainted (see, People v Chipp, 75 NY2d 327, 335, cert denied 498 US 833; People v Adams, 53 NY2d 241, 250-251), the prosecution satisfied its burden of proving by clear and convincing evidence that the witness’s in-court identification had an independent origin, untainted by police procedure, so as to make it admissible (see, People v Porpeglia, 167 AD2d 727, lv denied 77 NY2d 965; see also, People v Brooks, 210 AD2d 800, Iv denied 85 NY2d 906). The clerk identified defendant in open court as the individual who cashed the check. She testified that she had a good view of defendant for a few minutes and that the store was well lit. She also testified that she had seen him on more than one occasion with someone else to cash checks. Although she could not remember whether these other occasions were before or after the April 3, 1994 incident, she testified that she knew defendant from these encounters. She also stated that the other encounters took place before she was contacted by the police concerning defendant’s actions. The circumstances surrounding the in-
White, J. P., Casey, Peters and Spain, JJ., concur. Ordered that the judgment is affirmed.