People v. Blount, 2017–08249

• Court: New York Supreme Court Appellate Division
• Citation: 176 A.D.3d 1092,112 N.Y.S.3d 155
• Docket Number: 2017–08249,Ind. No. 15–1204
• Parties: The PEOPLE, etc., Respondent, v. Ahkim BLOUNT, Appellant.
• Decision Date: 23 October 2019

176 A.D.3d 1092
112 N.Y.S.3d 155

The PEOPLE, etc., Respondent,
v.
Ahkim BLOUNT, Appellant.

2017–08249
Ind. No. 15–1204

Supreme Court, Appellate Division, Second Department, New York.

Submitted—May 28, 2019
October 23, 2019

112 N.Y.S.3d 157

Del Atwell, East Hampton, NY, for appellant.

Anthony A. Scarpino, Jr., District Attorney, White Plains, N.Y. (Jennifer Spencer and William C. Milaccio of counsel), for respondent.

MARK C. DILLON, J.P., JEFFREY A. COHEN, COLLEEN D. DUFFY, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

176 A.D.3d 1092

Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Susan Cacace, J.), rendered July 11, 2017, convicting him of predatory sexual assault (three counts), rape in the first degree, criminal sexual act in the first degree (two counts), sexual abuse in the first degree (two counts), robbery in the third degree (two counts), robbery in the second degree, and robbery in the first degree (two counts), upon his plea of guilty, and imposing sentence. The appeal

176 A.D.3d 1093

brings up for review the denial, after a hearing, of those branches of the defendant's omnibus motion which were to suppress identification testimony and his statements to law enforcement officials.

ORDERED that the judgment is affirmed.

We agree with the Supreme Court's denial of that branch of the defendant's omnibus motion which was to suppress identification testimony. "In determining whether a photographic array was unduly suggestive the hearing court should consider whether there was any substantial likelihood that the defendant would be singled out for identification" ( People v. Thomas, 164 A.D.3d 619, 621, 82 N.Y.S.3d 82 [internal quotation marks omitted]; see People v. Burroughs, 98 A.D.3d 583, 583, 949 N.Y.S.2d 211 ). "A photographic display is suggestive when some characteristic of one picture draws the viewer's attention to it, indicating that the police have made a particular selection" ( People v. Cantoni, 112 A.D.3d 733, 733, 976 N.Y.S.2d 396 [internal quotation marks omitted]; see People v. Redding, 132 A.D.3d 700, 700, 17 N.Y.S.3d 495 ). Here, the People established that the persons depicted in the other photographs included in the arrays viewed by two of the victims were sufficiently similar in appearance to the defendant. A detective who prepared the arrays testified that he had prepared the arrays by entering information about the defendant's appearance into a computer program and then selecting from the results (see Matter of Jamir T., 169 A.D.3d 800, 801, 94 N.Y.S.3d 140 ; People v. Thomas, 164 A.D.3d at 621, 82 N.Y.S.3d 82 ; People v. Busano, 141 A.D.3d 538, 540–541, 36 N.Y.S.3d 149 ). The fact that the defendant's photograph was cropped closer than the other photographs and that he was wearing a hoodie were not, in themselves, enough to establish that the photographic arrays were unduly suggestive (see People v. McBride, 14 N.Y.3d 440, 448, 902 N.Y.S.2d 830, 928 N.E.2d 1027 ; People v. Thomas, 164 A.D.3d at 621, 82 N.Y.S.3d 82 ;

112 N.Y.S.3d 158

People v. Drayton, 70 A.D.3d 595, 596, 896 N.Y.S.2d 320 ). Further, the composition of the defendant's photograph was not so dissimilar to the other photographs as to " ‘create a substantial likelihood that the defendant would be singled out for identification’ " ( People v. Johnson, 165 A.D.3d 1168, 1170, 85 N.Y.S.3d 585, quoting People v. Chipp, 75 N.Y.2d 327, 336, 553 N.Y.S.2d 72, 552 N.E.2d 608 ; see People v. Smith, 157 A.D.3d 978, 979, 69 N.Y.S.3d 401 ).

In addition, we agree with the Supreme Court's denial of that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement officials. CPL 140.20(1) requires that "a prearraignment detention not be prolonged beyond a time reasonably necessary to accomplish the tasks required to bring an arrestee to arraignment" ( People v. Jin Cheng Lin, 26 N.Y.3d 701, 721, 27 N.Y.S.3d 439, 47 N.E.3d 718 [internal quotation

176 A.D.3d 1094

marks and citation omitted] ). "While an undue delay in arraignment is properly considered when assessing the voluntariness of a defendant's confession, a delay in arraignment alone does not warrant...