People v. Cummings

• Decision Date: 04 March 1985
• Citation: 485 N.Y.S.2d 847,109 A.D.2d 748
• Parties: The PEOPLE, etc., Respondent, v. Michael CUMMINGS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 847

485 N.Y.S.2d 847

109 A.D.2d 748

The PEOPLE, etc., Respondent, v. Michael CUMMINGS, Appellant.

Supreme Court, Appellate Division Second Department.

March 4, 1985.

Joseph A. Vita, Port Chester, for appellant.

Carl A. Vergari, Dist. Atty., White Plains (Joseph M. Latino and Gerald D. Reilly, Asst. Dist. Attys., White Plains, of counsel), for respondent.

Before TITONE, J.P., and GIBBONS, BRACKEN and WEINSTEIN, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the County Court, Westchester County, rendered October 14, 1981, convicting him of robbery in the first degree (four counts), robbery in the second degree (three counts), robbery in the third degree, grand larceny in the third degree (two counts), assault in the second degree, criminal use of a firearm in the first degree, and criminal possession of a weapon in the fourth degree (two counts), upon a jury verdict, and imposing sentence.

Judgment affirmed.

On November 8, 1980, at approximately 9:20 P.M., Frank Sardoni and his girlfriend, Stephanie Kostarellos, were proceeding to the Detroit Night Club in Port Chester. As Mr. Sardoni was exiting the car, he was seized from behind, struck with a gun and robbed of money at gunpoint by one assailant, while Ms. Kostarellos, who was still in the auto, was robbed by another. Both victims testified that defendant was the man who had assaulted and robbed Mr. Sardoni.

Defendant's initial contention on appeal is that the in-court identification by Ms. Kostarellos should have been suppressed because: (1) she had viewed a certain photo array which included defendant's picture under circumstances which the hearing court found to be unduly suggestive, and (2) she lacked an independent basis from which to make an identification. We disagree. Defendant does not claim that the photo array itself was unduly suggestive. Rather, defendant relies on the hearing court's determination that the photo identification procedure was tainted because Ms. Kostarellos was in the vicinity at the time Sardoni made an identification based upon the same photo array. However, this determination is not supported by the Wade hearing record. That record contains no evidence that the two witnesses consulted with one another in determining which, if any, picture depicted their assailant nor does it establish that one witness saw which photo was picked by the other. Thus, there is no evidence that either witness influenced the other, or that the viewing of the photos was otherwise tainted (People v. Gaddy, 98 A.D.2d 729, 469 N.Y.S.2d 143; People v. Fernandez, 82 A.D.2d 922, 440 N.Y.S.2d 677). We determine, therefore, that the hearing court erred in finding that Ms. Kostarellos' photo identification was tainted by reason of her proximity to Sardoni at the time he identified defendant from the photo array. Moreover, a review of the hearing testimony demonstrates that both witnesses had an ample opportunity to observe defendant during the commission of the crime and, therefore, their in-court identification had an adequate independent basis.

Defendant next contends that the trial court improperly permitted the bolstering of the identification testimony of these witnesses by allowing them to testify at trial regarding their recognition of defendant at a pretrial felony hearing. However, the record reflects that defendant had waived his presence at the felony hearing and was not present in the courtroom when such hearing took place. Thus, neither witness actually identified defendant in the course of the hearing. Rather, their trial testimony was based upon their observations of defendant as he stood in the courtroom prior to the hearing.

There is no question that defendant had the right to waive his appearance at the felony hearing, and he would be entitled, upon a proper showing (CPL 710.60), to a Wade hearing on the question of the suggestiveness of an identification made in the course of such hearing (People v. Lyde, 104 A.D.2d 957, 480 N.Y.S.2d 734; People v. James, 100 A.D.2d 552, 473 N.Y.S.2d 252)....