Opinion
February 26, 1991
Appeal from the Supreme Court, New York County, Allen Alpert, J.
Defendant's conviction arose out of a January 7, 1988 burglary of the apartment premises of Gregg Sloane and his sister Danielle Sloane, both of whom were at home at the time of the burglary and had substantial opportunity during the thirty or forty minutes he was in the apartment to observe the burglar, who threatened them by brandishing a screwdriver.
Although the trial court properly suppressed two pre-trial identifications by Gregg Sloane as the product of unduly suggestive identification procedures, the totality of the testimony by Mr. Sloane at the Wade hearing regarding the length and quality of his observation of defendant at the time of the burglary amply supported the trial court's ruling of admissibility of independent source identification testimony. (See, People v Malloy, 55 N.Y.2d 296, cert denied 459 U.S. 847.) Additionally, the identification testimony of Danielle Sloane was properly ruled admissible. There was no evidence that any identification procedure involving Danielle Sloane was in any way suggestive, and thus she was not a necessary witness at the Wade hearing (People v Peterkin, 75 N.Y.2d 985). Further, any indication to the complaining witnesses by the officer who arranged the lineup in this matter that a suspect was in custody did not contaminate the lineup procedure, which was in no way unduly suggestive and where an independent source exists. (People v Rodriguez, 64 N.Y.2d 738.)
We find no merit in defendant's contention that the trial court improperly denied his oral application at sentencing to withdraw his guilty plea on the combined grounds of ineffective assistance of counsel and a claim of innocence. Defendant failed to show that his counsel's conduct in any way fell below acceptable professional standards, or that he suffered any prejudice as a result of his attorney's representation. (Strickland v Washington, 466 U.S. 668.) Additionally, defendant's mere claim of innocence did not require the trial court to vacate his guilty plea (People v Dixon, 29 N.Y.2d 55). The record clearly shows that defendant's guilty plea was entered into knowingly, voluntarily and intelligently (People v Harris, 61 N.Y.2d 9), and the trial court's denial of the application after affording defendant, his counsel, and the prosecutor, full opportunity to address the court, was an appropriate exercise of discretion in the circumstances (People v Tinsley, 35 N.Y.2d 926).
Concur — Milonas, J.P., Ellerin, Wallach, Kassal and Smith, JJ.