Opinion
November 15, 1989
Appeal from the Erie County Court, McCarthy, J.
Present — Denman, J.P., Boomer, Balio, Lawton and Davis, JJ.
Judgment unanimously affirmed. Memorandum: Defendant's claim that the in-court identification testimony and his custodial statement were the fruits of an illegal arrest is without merit. Defendant concedes that the police had sufficient suspicion to warrant his brief detention for purposes of a showup (see, People v Hicks, 68 N.Y.2d 234), and police conduct during the showup did not render his subsequent arrest illegal (see, People v Dennis, 125 A.D.2d 325, lv denied 70 N.Y.2d 645; cf., United States v Edmons, 432 F.2d 577, where the unlawful arrest preceded the showup).
We agree with defendant's contention that an independent basis did not exist for the in-court identification by Milner (see, Neil v Biggers, 409 U.S. 188, 199-200). Admission of his identification testimony was, however, harmless error. Ruth Jones, another victim, had been familiar with defendant prior to the crime, viewed defendant during the crime from a short distance in a well-lighted room, and provided the police with a detailed and accurate description of the defendant. The court properly concluded that there was an independent basis for her in-court identification (see, People v Hughes, 136 A.D.2d 916; People v Tillman, 122 A.D.2d 534, lv denied 68 N.Y.2d 774; People v Sorenson, 112 A.D.2d 1016, lv denied 66 N.Y.2d 767). Jones' strong and unequivocal testimony, defendant's custodial statement, and evidence that defendant was apprehended immediately after the crime within 40 to 60 yards of Milner's apartment constituted overwhelming proof of defendant's guilt. Moreover, because the jury was aware that Milner's identification was based solely upon the hat defendant was wearing, we are persuaded that Milner's identification testimony did not contribute to the jury's verdict (see, People v Wronge, 126 A.D.2d 588, lv denied 69 N.Y.2d 888; People v Ray, 50 A.D.2d 575).