Opinion
December 1, 1997
Appeal from the County Court, Suffolk County (Kotter, J., at sentencing; Corso, J., at trial and hearing).
Ordered that the judgment is affirmed.
It is well settled that a witness may make an in-court identification of a perpetrator despite the existence of an unduly suggestive pretrial identification procedure, so long as the People demonstrate by clear and convincing evidence that the in-court identification is based upon the witness's independent observation of the accused ( see, People v. Owens, 74 N.Y.2d 677; People v. Adams, 53 N.Y.2d 241; People v. Fuentes, 240 A.D.2d 511). In this case, the prosecution established that the identifying police officer had an unobstructed view of the defendant at close range in broad daylight, and that he was able to provide a detailed, accurate description of the defendant ( see, People v. Steward, 206 A.D.2d 397; People v. Hyatt, 162 A.D.2d 713). Accordingly, the court properly permitted the officer to identify the defendant in court notwithstanding the suppression of a previous lineup identification by the officer.
Contrary to the defendant's contention, the trial court did not err in granting the People's application to modify its Sandoval ruling during the cross-examination of the defendant. A court may alter its Sandoval ruling to permit inquiry into a previously prohibited subject if the accused gives untruthful or misleading testimony regarding that subject ( see, People v. Fardan, 82 N.Y.2d 638, 646; People v. Leggett, 221 A.D.2d 371). Here, the defendant gave misleading testimony regarding his previous experience with firearms, thereby opening the door to questioning regarding his prior conviction for an offense which involved the use of a gun ( see, People v. Hicks, 226 A.D.2d 189; People v. Santiago, 169 A.D.2d 557; see generally, People v. Wynn, 208 A.D.2d 576; People v. Johnson, 203 A.D.2d 588). The defendant's contention that the prosecutor violated the terms of the modified Sandoval ruling is unpreserved for appellate review, since he neither objected to the line of questioning nor requested curative instructions ( see, CPL 470.05; People v. Otote, 203 A.D.2d 488). In any event, any purported error was harmless in view of the overwhelming evidence of the defendant's guilt ( see, People v. Crimmins, 36 N.Y.2d 230).
Bracken, J. P., O'Brien, Sullivan and Santucci, JJ., concur.