People v. Cherny
| Decision Date | 30 January 1992 |
| Citation | 579 N.Y.S.2d 204,179 A.D.2d 938 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Gary F. CHERNY, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Martin Cirincione, Schenectady, for appellant.
Robert M. Carney, Dist. Atty. (Philip W. Mueller, of counsel), Schenectady, for respondent.
Before WEISS, LEVINE, MERCURE, MAHONEY and HARVEY, JJ.
Appeal from a judgment of the County Court of Schenectady County (Harrigan, J.), rendered June 21, 1990, upon a verdict convicting defendant of the crimes of burglary in the second degree (three counts) and assault in the third degree (two counts).
Convicted after trial of various counts of burglary and assault as the result of a brutal attack on two elderly victims, defendant appeals, challenging only County Court's determination that the victims' photographic identification of defendant was merely confirmatory and as such did not trigger the notice provisions of CPL 710.30. We affirm.
In sharp contrast to defendant's contention that the victims' prior relationship with defendant was "fleeting and distant", the proof adduced before the Grand Jury and at trial established that defendant had lived in the victims' neighborhood for a period of years, that the victims had seen defendant on a number of prior occasions and that, at the time of the crimes, they immediately recognized defendant as the person they referred to as the "ferret man" because he would walk the streets with a ferret on his shoulder. Although the victims did not know defendant's name, one of them recalled a past conversation in which the "ferret man" had mentioned the name of his veterinarian. The victims contacted the veterinarian, who made a search of his patient records and came up with defendant's name. In order to confirm that the name furnished by the veterinarian was actually that of the person known to the victims, the police prepared an array of photographs of six bearded white men, including defendant. Upon viewing the photographs, the victims immediately identified defendant as their assailant.
We reject defendant's claim that the photographic identification procedures were subject to the provisions of CPL 710.30. Clearly, the sole purpose for the photographic identification was " 'to put a name to a face' " that the victims already knew (People v. Laurey, 163 A.D.2d 742, 743, 558 N.Y.S.2d 327, lv. denied 76 N.Y.2d 941, 563 N.Y.S.2d 70, 564 N.E.2d 680). "Since the...
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