People v. Smalls

• Decision Date: 01 July 1985
• Citation: 490 N.Y.S.2d 851,112 A.D.2d 173
• Parties: The PEOPLE, etc., Respondent, v. Andre SMALLS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 851

490 N.Y.S.2d 851

112 A.D.2d 173

The PEOPLE, etc., Respondent, v. Andre SMALLS, Appellant.

Supreme Court, Appellate Division,

Second Department.

July 1, 1985.

Leon A. Milman, Brooklyn (Jonathan S. Roller, Brooklyn, on brief), for appellant.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, John Larsen, Brooklyn, and Carol A. Cimkowski, of counsel), for respondent.

Before BRACKEN, J.P., and O'CONNOR, RUBIN and KUNZEMAN, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered December 22, 1983, convicting him of burglary in the first degree, assault in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

Judgment affirmed.

After arriving at the 70th precinct complainant was apparently led by an unidentified police officer past a detention cell in which defendant was being temporarily held after his arrest earlier that day. The complainant, whose attention was not otherwise drawn to the defendant as he was led past the cell, nevertheless recognized and subsequently identified defendant as the man who had shot him two days earlier.

At the suppression hearing, defendant argued that the aforesaid viewing of him by complainant was a showup and so impermissibly suggestive as to require the suppression of both the precinct identification and any subsequent in-court identification. The suppression court termed the precinct viewing "unfortunate" but nevertheless ruled that the complainant should be permitted to make an in-court identification since there was an independent source supporting the identification. We agree.

Although the leading of complainant past defendant's cell was apparently unintentional, it was clearly the product of questionable police practice and was unduly suggestive even if purely accidental. "As a general rule, the practice of exhibiting a suspect to a witness for identification without the benefit of a lineup, absent exigent circumstances, has been condemned as violative of due process" (People v. Brnja, 70 A.D.2d 17, 23, 419 N.Y.S.2d 591, affd. 50 N.Y.2d 366, 429 N.Y.S.2d 173, 406 N.E.2d 1066). However, the exclusion of identification testimony is premised upon the possibility that a tainted or suggestively arranged exhibition will result in misidentification at trial (People v. Adams, 53 N.Y.2d 241, 250-51, 440 N.Y.S.2d 902, 423 N.E.2d 379). Therefore, even if an identification is the product of a suggestive showup, a witness will nonetheless be permitted to identify the defendant in-court if that identification is based on an independent source (People v. Adams, supra, at 251, 440 N.Y.S.2d 902, 423 N.E.2d 379). Such an independent source supports the complainant's in-court identification of defendant. At the suppression hearing, the complainant testified that he conversed with the defendant and observed him for one or two minutes (People v. Smallwood, 99 A.D.2d 819, 820, 472 N.Y.S.2d 406); that he was no more than a yard away from defendant as he spoke to him; and that the hallway area near his apartment where he observed defendant was well lighted. The record supports the suppression court's determination of an independent source, and accordingly, the complainant's in-court identification of defendant was properly admitted into evidence. ...