People v. Diaz
| Decision Date | 30 March 1995 |
| Citation | 625 N.Y.S.2d 120,213 A.D.2d 353 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Jose DIAZ, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
M. Brisman, for respondent.
K. Riecker, for defendant-appellant.
Before RUBIN, J.P., and ROSS, NARDELLI, WILLIAMS and TOM, JJ.
Judgment, Supreme Court, Bronx County (Frank Diaz, J.), rendered January 14, 1991, convicting defendant, after jury trial, of murder in the second degree (two counts), attempted murder in the second degree, attempted robbery in the first degree, and assault in the first degree (two counts), and sentencing him, as a second felony offender to concurrent terms of 25 years to life on the murder counts and 7 1/2 to 15 years on the assault and attempted robbery counts, and to a term of 12 1/2 to 25 years on the attempted murder count, to run consecutively to the sentences imposed on the murder counts, but concurrent to all other counts, and order of the same court and Justice entered March 14, 1994, denying defendant's CPL 440.10 motion to vacate the judgment, unanimously affirmed.
The tentative lineup identification of defendant by the murder victim's wife did not preclude a finding of independent source and would properly go to the weight accorded the in-court identification, rather than its admissibility (see, People v. McCullers, 40 A.D.2d 796, 338 N.Y.S.2d 63, affd. 33 N.Y.2d 806, 350 N.Y.S.2d 904, 305 N.E.2d 914). The witness' subsequent inadvertent stationhouse viewing of defendant, which resulted in a second tentative identification due to the witness' expressed state of physical and emotional distress, cannot negate the circumstances that the witness had extended opportunity to observe defendant before and during the incident, providing an independent source out of which the witness recognized defendant on the street twelve days after the incident, pointed him out to the police, and identified him again at the pretrial suppression hearing (see, People v. Johnson, 167 A.D.2d 298, 562 N.Y.S.2d 40, lv. denied 77 N.Y.2d 907, 569 N.Y.S.2d 939, 572 N.E.2d 622).
To the extent defendant objected to the inadvertent references to defendant's presence near the scene of the crime immediately prior thereto by a witness whose in-court identification had been precluded, the trial court appropriately exercised its discretion in ruling that defendant was not so prejudiced that a mistrial was required (People v. Ortiz, 54 N.Y.2d 288, 292, 445 N.Y.S.2d...
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