Judgment, Supreme Court, New York County (Richard D. Carruthers, J. at hearing; Daniel P. FitzGerald, J. at plea and sentence), rendered March 3, 2008, convicting defendant of assault in the first degree, and sentencing him, as a second felony offender, to a term of 8 years, unanimously affirmed.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Andrias, J.P., Catterson, Renwick, DeGrasse, Freedman, JJ.
The court properly found, by clear and convincing evidence, that although a lineup had been suppressed on right to counsel grounds, the victim could make an in-court identification of defendant based upon an independent source (see e.g. People v Robinson, 8 AD3d 95 , lv denied 3 NY3d 742 ). There is no basis for disturbing the court's determinations concerning credibility. The victim had seen defendant numerous times in the neighborhood, and had an ample opportunity to observe him during a 20-minute incident that included several conversations between the two men, and ended when defendant shot the victim.
The surcharges and fees were properly imposed (see People v Guerrero, 12 NY3d 45 ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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