New York Supreme and/or Appellate Courts 2012_00722.htm
Decided on February 2, 2012
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.
Mazzarelli, J.P., Friedman, Catterson, Renwick, Roman, JJ.
Order, Family Court, New York County (Mary E. Bednar, J.), entered on or about September 29, 2010, which granted respondent's motion to suppress evidence, unanimously modified, on the law, to extent of denying the motion to suppress any in-court identification of respondent, and otherwise affirmed, without costs. Order, same court and Judge, entered on or about October 8, 2010, which dismissed the petition for failure to prosecute, unanimously reversed, on the law, without costs, the petition is reinstated and the matter is remitted to the Family Court for further proceedings.
The hearing court suppressed respondent's statement and all identification evidence on the ground that respondent's arrest was unlawful. However, the court erred in suppressing the victim's potential in-court identification.
"As to [an] in-court identification . . ., it is settled that such an identification will not be precluded by the fact of an antecedent unlawful seizure, so long as the in-court identification proceeds from an independent recollection" (People v Pleasant, 54 NY2d 972, 973 [citing United States v Crews, 445 US 463 ). Here, the court found that "the two minutes the complainant saw his assailants, at close range, was an adequate amount of time for him to make an independent source identification." The hearing record fully supports that determination.
We have considered and rejected respondent's procedural claims. In particular, we find that appellant presentment agency's objections to the hearing court's ruling were sufficiently specific to preserve the issue raised on appeal, and that the court made an express finding of independent source.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 2, 2012
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