People v. Whitaker

— Judgment, Supreme Court, New York County (Jay Gold, J.), rendered on October 5, 1989, convicting defendant, after trial by jury, of murder in the second degree and criminal possession of a weapon in the second degree and sentencing him to concurrent terms of imprisonment of fifteen years to life and five to fifteen years, respectively, and order of the same court, entered on March 11, 1992, which denied defendant-appellant’s motion to vacate said judgment, unanimously affirmed.

The evidence at the suppression hearing concerning the procedures used by the police in having two witnesses identify defendant from photographs indicated that each witness independently identified defendant from a non-suggestive photo array. While the testimony left open the possibility that the second witness, who had known defendant previously, saw a signed statement by the first witness concerning his identification of defendant’s photograph, this did not occur, if at all, until after the second witness had actually made his identification. Under these circumstances, defendant did not have an *504unqualified right to call the two witnesses to testify at the hearing (People v Chipp, 75 NY2d 327, 337-338, cert denied 498 US 833). Defendant’s reliance on People v Ocasio (134 AD2d 293) is misplaced, as that case concerned police procedures which left open the possibility of communication between eyewitnesses before they had all actually made an identification. Concur — Milonas, J. P., Rosenberger, Ellerin and Rubin, JJ.