Opinion
October 4, 1993
Appeal from the Supreme Court, Kings County (Corriero, J.).
Ordered that the judgment is affirmed.
We find unpersuasive the defendant's contention that the court erred in its rulings permitting in-court identification by eyewitnesses Wagner and McIntosh. At the pretrial Wade hearing, the court properly found that the lineup from which Wagner selected the defendant had been fairly conducted, but that the lineup identification should be suppressed based solely on the unlawful detention of the defendant by the police. Accordingly, in the absence of any proof of suggestiveness, the defendant was not entitled to a further inquiry to ascertain whether Wagner had an independent source for making an in-court identification (see, People v. Chipp, 75 N.Y.2d 327, cert denied 498 U.S. 833). Moreover, the defendant did not object to the court's procedure of permitting the distinct issue of Wagner's prior familiarity with the defendant to be fully explored at trial (cf., People v. Rodriguez, 79 N.Y.2d 445; People v Williamson, 79 N.Y.2d 799), and the resulting testimony demonstrated that Wagner knew the defendant by name from previous encounters. Thus, the evidence established that Wagner's identification was confirmatory, thereby further obviating any purported need for an independent source determination.
Similarly, the court's refusal to reopen the Wade hearing in order to further explore the confirmatory nature of the identification by eyewitness McIntosh did not constitute error. The court's determination that the identification by McIntosh was confirmatory was supported by the hearing testimony and was not undermined by the evidence proffered by the defendant's counsel. Hence, the court acted within its discretion in declining to reopen the hearing.
Additionally, the defendant's contention that the court erred in discharging a sworn juror is without merit. The record demonstrates that the court properly engaged in a thorough and searching inquiry of the juror (see, People v. Buford, 69 N.Y.2d 290) and correctly discharged her as being "grossly unqualified" (CPL 270.35) based upon the juror's candid and unequivocal admissions that job-related concerns would prevent her from giving her undivided attention to the case and would imperil her ability to decide the matter in a fair and impartial manner (see, People v. Rodriguez, 71 N.Y.2d 214; People v. Williams, 181 A.D.2d 845).
We have considered the defendant's remaining contentions and find them to be unpreserved for appellate review or without merit for the reasons set forth in our determination of his codefendant's appeal (see, People v. Rodriguez, 197 A.D.2d 546 [decided herewith]). Bracken, J.P., Sullivan, Copertino and Pizzuto, JJ., concur.