People v. Baptiste

• Decision Date: 22 February 1994
• Parties: The PEOPLE, etc., Respondent, v. Stedman BAPTISTE, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 266

608 N.Y.S.2d 266

201 A.D.2d 659

The PEOPLE, etc., Respondent, v. Stedman BAPTISTE, Appellant.

Supreme Court, Appellate Division,

Second Department.

Feb. 22, 1994.

Wiseman, Hoffmann & Walzer, New York City (Wayne B. Wiseman, of counsel), for appellant.

Charles J. Hynes, Dist. Atty., Brooklyn (Roseann B. MacKechnie, Anthea H. Bruffee, and Diane R. Eisner, of counsel), for respondent.

Before THOMPSON, J.P., and ROSENBLATT, COPERTINO and HART, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Goldberg, J.), rendered October 21, 1992, convicting him of robbery 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.

Contrary to the defendant's contentions, the evidence at the Dunaway/ Wade hearing supports the hearing court's conclusion that, at the time the police placed the defendant in a lineup, they had probable cause to believe that he had committed a crime based on a prior photographic identification by the complaining witness (see, People v. Higgins, 178 A.D.2d 199, 577 N.Y.S.2d 269; People v. Green, 157 A.D.2d 745, 550 N.Y.S.2d 41; People v. Palacio, 121 A.D.2d 282, 503 N.Y.S.2d 56; People v. Rhodes, 111 A.D.2d 194, 488 N.Y.S.2d 821; People v. Brewster, 100 A.D.2d 134, 473 N.Y.S.2d 984, aff'd, 63 N.Y.2d 419, 482 N.Y.S.2d 724, 472 N.E.2d 686).

Equally without merit is the defendant's contention that the pretrial identification procedures were unduly suggestive. The evidence at the hearing indicates that at the police precinct, the identifying witness was told that her initial selection of a photograph out of a book containing various photographs, was incorrect. Thereafter, the witness selected a photograph of the defendant and stated that he "looks just like him". At the lineup the witness positively identified the defendant. Although it has been held that it is improper to inform a witness of the correctness or incorrectness of his or her pretrial identification (see, United States v. Jarvis, 560 F.2d 494, 500, cert. denied, 435 U.S. 934, 98 S.Ct. 1511, 55 L.Ed.2d 532; People v. Boyce, 89 A.D.2d 623, 624, 452 N.Y.S.2d 676), we find that the police procedure employed in this case did not so taint the subsequent lineup identification as to require reversal. Furthermore, the record supports the hearing court's conclusion that the pretrial lineup was not suggestive in any way (see, People v. Adams, 53 N.Y.2d 241, 249, 440 N.Y.S.2d 902, 423 N.E.2d 379; People v. Gairy, 116 A.D.2d 733, 497 N.Y.S.2d 775; People v. Hazelton, 75 A.D.2d 694, 427 N.Y.S.2d 95).

The defendant's claim that he appeared much younger than his age of 18 years and that the stand-ins appeared much older is without merit. There is no requirement that a defendant in a lineup be accompanied by individuals nearly identical in appearance (see, People v. Chipp, 75 N.Y.2d 327, 553 N.Y.S.2d 72, 552 N.E.2d 608, cert. denied, 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70; People v. Rotunno, 159 A.D.2d 601, 552 N.Y.S.2d 445; People v. Diaz, 138 A.D.2d 728, 526 N.Y.S.2d 540). An examination of the hearing testimony, as well as the lineup photograph, reveals that the lineup stand-ins were similar to the defendant in terms of hair style, facial hair, skin coloring, and dress, precluding the likelihood that the defendant was singled out for identification (see, Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401). In any event, the record supports the hearing court's determination of an independent...