Opinion
May 13, 1991
Appeal from the Supreme Court, Kings County (Lipp, J.).
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the hearing court properly declined to suppress the in-court identification testimony of the complaining witness. Although the court found that the lineup conducted by the police was impermissibly suggestive, it is well settled that even where "a suggestive identification procedure [was] employed by police, a witness will nonetheless be permitted to identify the defendant in court if that identification is based on an independent source" (People v Johnson, 129 A.D.2d 739, 740; People v Smalls, 112 A.D.2d 173). At bar, the testimony adduced at the Wade hearing established that the complainant observed the defendant in broad daylight on at least three separate occasions during the course of the robbery. The complainant and the defendant initially made eye contact from a distance of about six feet. The complainant then additionally observed the defendant's face as he handed him his wallet, and again as he complied with the defendant's order to exit his vehicle. Moreover, the complainant provided a fairly accurate and detailed description of the defendant to the police, noting his height, weight, overall facial structure and "cropped" haircut immediately after the robbery, and prior to viewing the defendant in the lineup. Accordingly, we find that the witness had an independent source for his in-court identification of the defendant (see, People v Burris, 171 A.D.2d 668; People v Colson, 148 A.D.2d 626; People v Williams, 126 A.D.2d 766).
Furthermore, we reject the defendant's contention that the trial court improvidently exercised its discretion by refusing to admit into evidence certain photographs which were offered to establish that he could not have grown a small mustache and goatee in the approximately one-week period between the robbery and his arrest. The court properly refused to admit the subject photographs without the defendant's corroborative testimony to serve as a foundation establishing that he did not trim the growth of his mustache and beard during the time period in question (see, People v Scarola, 71 N.Y.2d 769, 777; People v Knowell, 127 A.D.2d 794). We note that the defendant's private investigator, who took the photographs over an 11-day period while the defendant was awaiting trial, did not see the defendant for two days during the course of the "experiment", and was not with him on a continuous basis during the subject period. The proposed photographs were therefore inherently unreliable, and their accuracy could not be established without the defendant's testimony. Sullivan, J.P., Eiber, Rosenblatt and Ritter, JJ., concur.