Christopher E., Matter of

• Decision Date: 09 July 1990
• Citation: 163 A.D.2d 385,558 N.Y.S.2d 567
• Parties: In the Matter of CHRISTOPHER E. (Anonymous), Appellant.
• Court: New York Supreme Court — Appellate Division

Page 567

558 N.Y.S.2d 567

163 A.D.2d 385

In the Matter of CHRISTOPHER E. (Anonymous), Appellant.

Supreme Court, Appellate Division Second Department.

July 9, 1990.

Merril Sobie, White Plains, for appellant.

Marilyn J. Slaaten, County Atty., White Plains (Kenneth E. Powell and Frank Marocco, of counsel), for respondent.

Before THOMPSON, J.P., and RUBIN, ROSENBLATT and MILLER, JJ.

MEMORANDUM BY THE COURT.

In a juvenile delinquency proceeding pursuant to Family Court Act article 3, the appeal is from an order of disposition of the Family Court, Westchester County (Scancarelli, J.), dated May 4, 1990, which, upon a fact-finding order of the same court, dated April 16, 1990, made after a hearing, finding that the appellant had committed an act which, if committed by an adult, would have constituted the crimes of attempted robbery in the second degree (three counts) and assault in the second degree, adjudged him to be a juvenile delinquent, and placed him under the supervision of the New York State Division for Youth, Title III, for a period of 18 months. The appeal brings up for review the fact-finding order dated April 16, 1990.

ORDERED that the order of disposition is modified, on the law, by (1) deleting from the second decretal paragraph the following language: "subject to further order of this court", (2) deleting the fifth decretal paragraph, and (3) adding thereto a provision pursuant to Family Court Act § 353.3(9) directing that the respondent shall be confined in a residential facility for a minimum period of at least six months; as so modified, the order of disposition is affirmed, without costs or disbursements.

Contrary to the appellant's contention, although the photographic array viewed by the complainant approximately one month after the crime depicted the appellant against a beige venetian blind background and the other individuals against white backgrounds, it was not unduly suggestive. The photographs selected demonstrate that similarity of features, age, dress, and expression, were duly taken into account. It cannot be said that the photographic array indicated that the police had made a particular selection (see, People v. Cherry, 150 A.D.2d 475, 541 N.Y.S.2d 78; People v. Hawkins, 126 A.D.2d 747, 511 N.Y.S.2d 331; People v. Emmons, 123 A.D.2d 475, 506 N.Y.S.2d 485). Nor was the photographic identification by the complainant improper simply because a corporeal lineup, the preferred procedure, was not employed (see, People v. Diaz, 123 A.D.2d 713, 507 N.Y.S.2d 78).

Moreover, assuming arguendo, that the identification procedure was suggestive, the record reveals that the in-court identification had an independent basis since the complainant had the opportunity to view the appellant in close proximity during the commission of the crime (see, People v. Adams, 53 N.Y.2d 241, 251, 440 N.Y.S.2d 902, 423 N.E.2d 379; People v. Whitaker, 126 A.D.2d 688, 689, 511 N.Y.S.2d 112). The complainant's testimony with regard to his inability to make a prior in-court identification of the appellant, despite that he had previously made a photographic identification of the appellant, merely presented an issue of credibility (see People v. Badalucco, 127 A.D.2d 669, 511 N.Y.S.2d 893), which in this case was properly determined by the Family Court.

Also lacking in merit is the...