PEOPLE v. ASHE

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, the record supports the hearing court's conclusion that the complainant had an independent basis for identifying the defendant at trial. A witness may identify a perpetrator of a crime as part of his or her in-court testimony, notwithstanding the existence of a procedurally defective pretrial identification procedure, provided that the People establish by clear and convincing evidence that the in-court identification is based upon the witness' independent observation of the defendant (see People v. Thomas, 51 N.Y.2d 466; People v. Hyatt, 162 A.D.2d 713). Here, the evidence shows that the defendant stood over the complainant and spoke to her, during which time the complainant had an unobstructed view of the defendant under good lighting conditions. These facts established her independent ability to identify the defendant; therefore, suppression of the in-court identification was properly denied.

SANTUCCI, J.P., ALTMAN, S. MILLER and LUCIANO, JJ., concur.