On July 30, 2008, the defendant was convicted, after a jury trial, of two counts of Robbery in the First Degree, Robbery in the Second Degree, and Attempted Robbery in the First Degree, and was sentenced by the trial judge to an aggregate term of fifteen years to life. The defendant appealed the conviction and sentence. On August 25, 2011, the First Department reversed the defendant's conviction based on unduly suggestive line-ups and directed that an Independent Source hearing be held with respect to the three witnesses who had identified the defendant during the suggestive identification procedures. See People v. Kenley, 87 AD3d 518 (1st Dept. 2011). This Court received the case and on July 20 and 23, 2012, conducted an Independent Source hearing. Erin Monahan, Luis Goodsell, Richard Morales, and Detective Keith Murray testified for the People. The defendant presented evidence in the form of documentary evidence. The parties submitted written memoranda. This Court finds that there is an independent source for an in-court identification of the defendant by Erin Monahan, Luis Goodsell, and Richard Morales.

Findings of Fact

On September 16, 2007 at approximately 5:30 a.m., after leaving their place of business, Erin Monahan, Luis Goodsell, and Joann Goodsell were getting into Monahan's car parked on Morton Street in Manhattan when a car pulled up alongside Monahan's car. One man alighted from the [*2]passenger side of the car, while another man remained in the driver's seat. The man who got out of the car was dressed in black and demanded "the bag" from Monahan — the man gestured towards his pocket area. Monahan, who was about to sit in the front passenger seat of her car, responded that she did not have anything, and the man walked around the front of her car to the passenger side where she was standing. The man reached into Monahan's car, and she slammed the door on his arm. Monahan then approached the car that pulled up alongside and looked into the car at the defendant, who was in the driver's seat, for approximately ten to fifteen seconds; she also looked at his license plate. Monahan testified that she looked at the defendant in the car in order to remember the defendant's face and at the license plate to memorize the number. She testified that she "stared" at the defendant. There was nothing blocking her view of the defendant and she observed him through the untinted front windshield of the car. Monahan testified that the sun was just coming up, and there was a street light located right above that was illuminating the defendant's face. She viewed him from approximately eight to ten steps away. Monahan recalled that the defendant was a large black man, who was wearing black at the time of the crime. Monahan called 911 and reported the events, providing, inter alia, a description of the defendant and the other man as black men wearing all black, the license plate number, and a description of a gold-colored car.^[FN1]

Meanwhile, Luis Goodsell, who believed that the two individuals were their colleagues from work who were playing some kind of joke, approached the car, crouched down, and looked at the defendant, to see which of his co-workers was the prankster. Once Goodsell saw the defendant's face, he knew that he did not know him and realized then that the defendant and the other man were "trying to mug" them. Goodsell testified that nothing was blocking his view of the defendant, that he was approximately eight to ten steps away when he was looking at him, that the sun was coming up and that the lighting was just a bit dimmer than that of the courtroom. Goodsell recalled that the defendant was a "big, heavy black man," in his mid-30's with shoulder-length black braids, wearing a black shirt.

Also on September 16, 2007, at approximately 6:00 a.m., Richard Morales was walking on Varick Street in Manhattan when he noticed an individual walking behind him. The individual said "give me your bag," and, after assessing the situation and the individual's demeanor, Morales complied. Morales then observed the individual get into the passenger side of a car that was parked at the curb. Morales testified that he looked at the driver of the car, "a big, stocky" guy, who "swivelled his neck to look" at Morales. When Morales looked at the defendant, the defendant raised what appeared to be a firearm, and told Morales to keep looking forward. Morales looked the defendant directly in the face for approximately ten to fifteen seconds from about eight to ten steps away, making eye contact with him. Nothing was blocking his view of the defendant, including the car window, which was rolled down. Morales testified that the sun was starting to come up and that the area was lit by commercial establishments, including a twenty-four hour McDonald's.^[FN2] Within a minute of the robbery, Morales called 911, reporting the events and describing two black males, [*3]one of whom, the defendant, was sitting down in a gold-colored car, and who was "pretty stocky."^[FN3]

Detective Keith Murrray, a member of the New York Police Department ("NPYD") for approximately eighteen years, currently of the 6th Precinct, testified that on September 16, 2007, he was assigned to investigate two robberies that had taken place early that morning. As part of that investigation, he interviewed Erin Monahan, Luis Goodsell, and Richard Morales that day. Murray testified that Monahan described the defendant as a "big, fat, black guy," that Goodsell described the defendant as a "heavy-set male black," and that Morales described the defendant as a "heavy-set black guy." On that same day, September 16, 2007, Murray conducted a photo array with each of the witnesses.^[FN4] When Monahan looked at the photo array, she picked one or two people out as possibly being the defendant. The defendant's photograph was one of the two photos to which she pointed. When Goodsell looked at the photo array, he picked three photos as possibly being the defendant. The defendant's photograph was one of the three photos to which he pointed. When Morales looked at the photo array, he pointed to the photo of the defendant, but indicated that he could not be "positive" that the photo depicted the defendant. On September 19, 2007, Murray conducted line-ups with the same three witnesses. When Monahan viewed the line-up, she was unable to pick anyone out. She did, however, point to the defendant and indicate that she thought that she knew him from somewhere. Murray testified that she "seemed very certain" that she knew the defendant. When Goodsell viewed the line-up, he picked out the defendant and was "not hesitant." When Morales viewed the line-up, he picked out the defendant and was "not hesitant." Murray testified that he took pedigree information from the defendant and noted that the defendant weighed three hundred and eighty pounds.^[FN5]

Conclusions of LawThis Court credits the testimony of Erin Monahan, Luis Goodsell, Richard Morales, and Detective Keith Murray and will permit Erin Monahan, Luis Goodsell, and Richard Morales to make an in-court identification of the defendant at trial. The People have met their burden of showing by clear and convincing evidence that the in-court identifications are the result of sources independent from the suppressed identifications. See People v. Ballott, 20 NY2d 600 (1967); People v. Reyes, 151 AD2d 435 (1st Dept. 1989). In determining whether an independent source exists, the Court must evaluate the totality of the circumstances. See People v. Malloy, 55 NY2d 296 (1982). The factors to consider include the witness's opportunity to observe the individual, the witness's degree of attention, the accuracy of any prior description given by the witness, the degree of certainty with which the witness made any prior identifications, and the lapse of time between the crime and the identification. See Neil v. Biggers, 409 U.S. 188 (1972); People v. Williams, 222 AD2d 149 (1st [*4]Dept. 1996).

Erin Monahan

Based on the foregoing, this Court finds that Erin Monahan has a sufficient independent source for an in-court identification of the defendant. Indeed, the hearing testimony establishes that Monahan had a meaningful opportunity to observe the defendant. Monahan testified that she observed the defendant on a well-lit street as dawn was breaking, from approximately eight to ten steps away, without any obstruction for approximately ten to fifteen seconds. People v. Gilliard, 163 AD2d 326 (2d Dept. 1990). Moreover, she testified that she "stared" at the defendant in an effort to remember his face. Furthermore, she demonstrated a detailed recollection of her actions during the course of the robbery, including memorizing the license plate of the car that the defendant was driving. See People v. Thomas, 68 AD3d 685 (1st Dept. 2009); People v. Brown, 293 AD2d 686 (2d Dept. 2002); People v. Bostic, 222 AD2d 1073 (4th Dept. 1995). Finally, she was able to describe the defendant's race, relative size, and clothing to the police immediately after the incident. See People v. Rock, 44 AD3d 344 (1st Dept. 2007). Indeed, Monahan described the defendant, inter alia, as "a big, fat, black guy, " a description that matched the pedigree information taken from the defendant by Detective Murray.

Luis Goodsell

Similarly, this Court finds that Luis Goodsell has a sufficient independent source for an in-court identification of the defendant. Indeed, the hearing testimony establishes that Goodsell had a meaningful opportunity to observe the defendant. See In re Elias R., 33 AD3d 325 (1st Dept. 2006); People v. Radcliffe, 273 AD2d 483 (2d Dept. 2000). Goodsell testified that he crouched down to observe the defendant in the driver's seat of a car in an effort to determine whether he knew the defendant and determined that he did not. Goodsell also indicated that he could see the defendant's facial features, complexion, and clothing. Goodsell further testified that nothing was blocking his view of the defendant, and he was approximately eight to ten steps away when he saw him. See People v. Hyatt, 162 AD2d 713 (2d Dept. 1990). Additionally, Goodsell testified that he observed the defendant under good lighting conditions, as dawn was breaking, and described the lighting as slightly dimmer than the courtroom. See People v. Gilliard, 163 AD2d 326 (2d Dept. 1990). Indeed, Goodsell was able to describe the defendant to the police immediately following the incident, see People v. Hyatt, 162 AD2d 713 (2d Dept. 1990), describing the defendant as a "heavy-set male black." Goodsell's description also matched the pedigree information taken from the defendant by Detective Murray.

Richard Morales

Finally, this Court finds that Richard Morales has a sufficient independent source for an in-court identification of the defendant. Indeed, the hearing testimony establishes that Morales had a meaningful opportunity to observe the defendant. See People v. Ortiz, 292 AD2d 307 (1st Dept. 2002). Morales testified that the defendant was "a big, stocky guy," who "swivelled his neck to look" at Morales. Morales looked at the defendant directly in the face for approximately ten to fifteen seconds from about eight to ten steps away, making eye contact with him. See People v. Black, 170 AD2d 383 (1st Dept. 1991). Nothing was blocking his view of the defendant, including [*5]the car window, which was rolled down. Morales testified that the sun was starting to come up and that the area was lit by commercial establishments, including a twenty-four hour McDonald's. People v. Dixon, 158 AD2d 467 (2d Dept. 1990). Moreover, Morales was able to describe the defendant to the police immediately following the incident. Indeed, Morales described the defendant as a "heavy-set black guy." So, too, Morales' description matched the pedigree information taken from the defendant by Detective Murray.

Defendant's Arguments

Despite the foregoing, the defendant contends that as the witnesses were "equivocal" regarding their prior identifications of the defendant, the People have failed to demonstrate by clear and convincing evidence that an independent source exists for each witness to make an in-court identification. A tentative prior identification, however, does not preclude the Court from finding that an independent source exists for a witness's in-court identification of the defendant. See People v. Diaz, 213 AD2d 353 (1st Dept. 1995). Nor does a witness's inability to identify the defendant in a photo array preclude an in-court identification of the defendant. See People v. Spigner, 202 AD2d 331 (1st Dept. 1994); People v. Finley, 190 AD2d 859 (2d Dept. 1993); People v. Gangler, 227 AD2d 946 (4th Dept. 1996). Additionally, while, as the defendant notes, there may have been inconsistencies in each of the witness's testimony, those inconsistencies go to the weight to be afforded the testimony, not to the admissibility of the in-court identification. See People v. Buchanon, 186 AD2d 864 (1992); People v. Cruz, 167 AD2d 306 (1st Dept. 1990); People v. Marsh, 248 AD2d 743 (3d Dept. 1998). So, too, while there may have been inconsistencies between the testimony of the witnesses, such inconsistencies go to the weight of the testimony and do not prevent the finding of an independent source. See e.g., People v. Greene, 16 AD3d 350 (1st Dept. 2005); People v. Rosales, 216 AD2d 162 (1st Dept. 1995); People v. Rosa, 184 AD2d 319 (1st Dept. 1992).

This Court finds that there is an independent source for an in-court identification of the defendant by Erin Monahan, Luis Goodsell, and Richard Morales. This constitutes the Decision and Order of this Court.

Dated:New York, New York

September 13, 2012

_______________________ J.S.C.