People v. Ashby, 00-02309
| Decision Date | 31 December 2001 |
| Docket Number | 2,00-02309 |
| Parties | THE PEOPLE, ETC., RESPONDENT, v. CHRISTOPHER ASHBY, APPELLANT. (IND. NO. 99738/97) 2000-02309 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT Submitted - |
| Court | New York Supreme Court — Appellate Division |
Andrew E. MacAskill, Farmingdale, N.Y., for appellant.
Denis Dillon, District Attorney, Mineola, N.Y. (Robert A. Schwartz and Karen Wigle Weiss of counsel), for respondent.
DECISION & ORDER
Cornelius J. O'Brien, J.P.
Fred T. Santucci
Anita R. Florio
Appeal by the defendant from a judgment of the County Court, Nassau County (Calabrese, J.), rendered January 18, 2000, convicting him of murder in the second degree (three counts), assault in the first degree, robbery in the first degree (two counts), robbery in the second degree, and burglary in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress identification testimony.
ORDERED that the judgment is affirmed.
The hearing court properly determined that the pretrial identification procedures employed in this case were not unduly suggestive (see, People v. Cosme, 125 A.D.2d 485). The sheer volume and scope of the photographic identification procedure utilized here, pursuant to which the complainant viewed hundreds of photographs of men who were of the same race and a similar age as the defendant, militates against suggestiveness (see, People v. Williams, 143 A.D.2d 162; People v Ludwigsen, 128 A.D.2d 810; People v. Jerome, 111 A.D.2d 874). The defendant's further contention that the complainant's selection of his photograph was unduly influenced by the presence of her husband, a non-identifying witness, who sat next to her as she viewed the photographs, is also without merit (see, People v. Garry, 269 A.D.2d 158; cf., People v. Leite, 52 A.D.2d 895).
The lineup identification procedure conducted by the police was not unduly suggestive. The photograph taken of the lineup shows that the fillers sufficiently resembled the defendant in age and physical characteristics (see, People v. Chipp, 75 N.Y.2d 327, cert denied 498 US 833; People v. Keller, 242 A.D.2d 735; People v. Folk, 233 A.D.2d 462; People v. Christenson, 188 A.D.2d 659; People v Smith, 140 A.D.2d 647). Contrary to the defendant's contention, the complainant's pretrial lineup identification of him made almost four years after the crime and without hesitation on her part, was not tainted by her prior photographic identification (see, People v. Young, 167 A.D.2d 366; People v. Allah, 158 A.D.2d 605). Neither...
To continue reading
Request your trial