People v. Webster

—Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Cirigliano, J.), rendered October 22, 1996, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Angiolillo, J.), of those branches of the defendant’s omnibus motion which were to suppress identification evidence and a statement made by the defendant to law enforcement officials.

Ordered that the judgment is affirmed.

A witness was properly permitted to make an in-court identification of the defendant notwithstanding her tainted pretrial identification of him because the People demonstrated by clear and convincing evidence that the witness’s in-court identification was based upon her observation independent of the suggestive pretrial identification procedure (see, People v Hyatt, 162 AD2d 713 , 714; see also, People v Fuentes, 240 AD2d 511 ; People v Macovey, 234 AD2d 393 ; People v Paul, 222 AD2d 706 ).

The hearing court properly denied that branch of the defendant’s omnibus motion which was to suppress a statement he made while he was a patient in a hospital outside the United States to law enforcement officials of a foreign country. The statement was given in a noncoercive setting despite the defendant’s medical condition, which rendered him immobile (see, People v Bongiorno, 243 AD2d 719 ; People v Bowen, 229 AD2d 954 ; People v Ripie, 182 AD2d 226 ), and, in any event, the foreign law enforcement officials were not bound by the mandates of Miranda v Arizona ( 384 US 436 ) (see, United States v Maturo, 982 F2d 57 , cert denied sub nom. Pontillo v United States, 508 US 980 ; United States v Covington, 783 F2d 1052 , cert denied 479 US 831 ).

Contrary to the defendant’s contention, a missing-witness charge is inappropriate when a witness has asserted his or her

The defendant’s contention that admission of a photograph of the victim’s decomposed body was unduly prejudicial is without merit. Generally, “photographs [of the deceased] are admissible if they tend to ‘prove or disprove a disputed or material issue, to illustrate or elucidate other relevant evidence, or to corroborate or disprove some other evidence offered or to be offered.’ They should be excluded ‘only if [their] sole purpose is to arouse the emotions of the jury and to prejudice the defendant’ ” (People v Wood, 79 NY2d 958 , 960, quoting People v Pobliner, 32 NY2d 356 , 369) (emphasis in original). The probable time of death was a material issue in this case. Therefore, the photograph of the decomposed body of the victim was relevant and necessary to this issue (see, People v Pobliner, supra; People v DeBerry, 234 AD2d 470 ; People v Washington, 182 AD2d 791 ; People v Webb, 179 AD2d 707 ; People v Wood, 79 NY2d 958 , supra).

The defendant’s remaining contentions are unpreserved for appellate review or without merit.

Mangano, P. J., Miller, Ritter and Thompson, JJ., concur.