Opinion
November 10, 1993
Appeal from the County Court of Schenectady County (Harrigan, J.).
In the early morning hours of January 19, 1991, Allen Bruce met defendant in a bar in the City of Schenectady, Schenectady County. They had several drinks and then proceeded to another bar where they met Jack Davis. The three men sat at a table drinking until closing time when they entered Bruce's car and drove to a convenience store. While Davis was in the store, defendant told Bruce he was going to take his car and a struggle ensued. Defendant overpowered Bruce and, when Davis came out of the store, he and Davis drove off only to be apprehended by the police a short time later. Defendant was taken to the police station where he was identified by Bruce.
Although this station house identification was suppressed as being unduly suggestive, County Court permitted an in-court identification of defendant by Bruce. It did not err in doing so because the evidence at the suppression hearing that Bruce and defendant spent several hours together prior to the crime supports its finding that Bruce had an independent source for his in-court identification of defendant (see, People v Riley, 70 N.Y.2d 523; People v Buchanon, 186 A.D.2d 864, lv denied 81 N.Y.2d 785; People v Gross, 171 A.D.2d 957).
Assuming that County Court should have given the accomplice-corroboration charge as defendant contends, its failure to do so was harmless error because Davis was not an accomplice as a matter of law and the other evidence is overwhelmingly indicative of defendant's guilt (see, People v Leon, 121 A.D.2d 1, lv denied 69 N.Y.2d 830; People v Pepper, 89 A.D.2d 714, affd 59 N.Y.2d 353).
We have not considered defendant's final argument that County Court erred in its supplemental jury instruction because this issue was not preserved for appellate review (see, People v Longo, 182 A.D.2d 1019, lv denied 80 N.Y.2d 906).
Yesawich Jr., J.P., Crew III, Mahoney and Casey, JJ., concur. Ordered that the judgment is affirmed.