People v. Burts 162 A.D.2d 1020

Judgment unanimously affirmed. Memorandum: The evidence supports the court’s finding, following the remittal hearing (see, People v Burts, 156 AD2d 1010), that Paula Toms’ in-court identification of defendant was based upon a source independent of any taint from a suggestive photo array. At the time of the crime Ms. Toms viewed defendant for several minutes, face to face, from a short distance. It was a sunny day and nothing obstructed her view. Since Toms’ testimony was sufficient to support defendant’s convictions we need not decide whether the identification testimony at trial of Mr. Young, who was deceased at the time of the hearing, was admissible on the remittal hearing (see, CPL 670.10; cf., People v James, 67 NY2d 662, 664). (Appeal from judgment of Erie County Court, Dillon, J.— robbery, first degree.) Present—Callahan, J. P., Doerr, Green, Balio and Davis, JJ.