PEOPLE v. FORBES

Ordered that the judgment is affirmed.

Viewing the evidence in the light most favorable to the prosecution ( see, People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence ( see, CPL 470.15).

The defendant has not preserved for appellate review his contention that his waiver of his right to a jury trial was legally insufficient ( see, People v. Magnano, 158 A.D.2d 979, affd 77 N.Y.2d 941, cert. denied 502 U.S. 864; People v. McKnight, 198 A.D.2d 306). In any event, his waiver was knowingly, voluntarily, and intelligently made ( see, People v. McQueen, 52 N.Y.2d 1025; People v. McKnight, supra; People v. Livingston, 184 A.D.2d 529).

While the court erred in finding an independent source for one of the complainant's in-court identifications, the People proved by clear and convincing evidence that the other complainant had a sufficient time to view the defendant irrespective of the tainted lineup ( see, People v. Livingston, supra; People v. Hyatt, 162 A.D.2d 713; People v. Johnson, 129 A.D.2d 739). As there was no reasonable possibility that the error might have contributed to the defendant's conviction, it was harmless beyond a reasonable doubt ( see, People v. Harris, 80 N.Y.2d 796).

Finally, since the court pronounced sentence on each count, remittitur is not necessary ( see, CPL 380.20; cf., People v. Sturgis, 69 N.Y.2d 816; People v. Cuccuru, 236 A.D.2d 419).

Santucci, J. P., Joy, Friedmann and McGinity, JJ., concur.