People v. Ames

• Decision Date: 09 December 1985
• Citation: 115 A.D.2d 543,496 N.Y.S.2d 65
• Parties: The PEOPLE, etc., Respondent, v. Linwood AMES, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 65

496 N.Y.S.2d 65

115 A.D.2d 543

The PEOPLE, etc., Respondent, v. Linwood AMES, Appellant.

Supreme Court, Appellate Division Second Department.

Dec. 9, 1985.

John F. Middlemiss, Jr., Ronkonkoma (Monroe A. Semble, of counsel), for appellant.

Patrick Henry, Dist. Atty., Riverhead (Steven A. Hovani, of counsel), for respondent.

Before GIBBONS, J.P., and BRACKEN, LAWRENCE and KUNZEMAN, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the County Court, Suffolk County (Scheinman, J.), rendered May 29, 1981, convicting him of robbery in the first degree and robbery in the second degree, upon a jury verdict, and imposing sentence.

Judgment affirmed.

Defendant, armed with a loaded gun, robbed a McDonald's restaurant in Huntington on October 11, 1980, aided by an unapprehended look-out. The five employees who were present at the time chose defendant's photograph from a group of seven photographs shown to them by a detective shortly after the robbery. Three of the employees subsequently selected a different photograph of defendant from a 17-photo array shown to them by detectives. In addition, two employees viewed two separate lineups and each picked out defendant. Apart from the conceded fact that defendant was the only person in both lineups who was not wearing shoes, there was no evidence of suggestive conduct on the part of the police detectives who conducted the photo or corporeal identification procedures. The hearing court denied defendant's motion to suppress the in-court identification of defendant by each of the five McDonald's employees, finding that each had a sufficient opportunity to observe defendant during the robbery. The court's decision did not address the fairness of the photo arrays or the lineups, but the two witnesses who identified defendant at the lineups were permitted to so testify before the jury.

Although the lineups were arguably suggestive in that defendant was the only unshod participant, the court's failure to grant suppression of testimony concerning those lineups does not require reversal in this case where only two of the five witnesses viewed the lineups and all five witnesses had a sufficient independent basis for the in-court identifications. Each had a good look at defendant's face in the well-lit restaurant during the 10 to 15-minute duration of the robbery and each gave an accurate and detailed description of defendant to the police. The witnesses' in-court identifications of defendant were, therefore, properly admitted as untainted by any arguably suggestive identification procedures (see, People v. Rahming, 26 N.Y.2d 411, 311 N.Y.S.2d 292, 259 N.E.2d 727; People v. Adams, 53 N.Y.2d 241, 252, 440 N.Y.S.2d 902, 423 N.E.2d 379; People v. MacKay, 98 A.D.2d 732, 469 N.Y.S.2d 146; People v. Hall, 81 A.D.2d 644, 438 N.Y.S.2d 148). If we were to assume that it was error to have allowed the People to introduce the testimony as to the identifications at the lineups, in light of the other strong identification testimony in this record, we would find such error to be harmless (see, People v. Magazine, 106 A.D.2d 473, 482 N.Y.S.2d 569).

Defendant further contends that the identifications should have been suppressed because he could not waive counsel at the lineups in the absence of an attorney who was representing him on another matter. This contention is without merit, as there is no right to counsel at a pre-arraignment lineup (People v. Hawkins, 55 N.Y.2d 474, 450 N.Y.S.2d 159, 435 N.E.2d 376, cert. denied 459 U.S. 846, 103 S.Ct. 103, 74 L.Ed.2d 93).

During the trial, the court permitted the People to amend the indictment pursuant to CPL 200.70(1), substituting the allegation that defendant stole property "from employees of McDonald's" for the original allegation that he stole property "from Amy Vanderpoel, an employee of McDonald's". Defendant contends that he was prejudiced by the amendment which increased the number of complainants from one to five. However, here, as in People v. Petterson, 103 A.D.2d 811, 477 N.Y.S.2d 691, defendant "fails to specify what viable defense he was forced to forgo or how he was otherwise misled to his detriment" (People v. Petterson, supra, at p. 812, 477 N.Y.S.2d 691...