People v. Bower

• Decision Date: 11 December 1995
• Citation: 222 A.D.2d 516,635 N.Y.S.2d 79
• Parties: The PEOPLE, etc., Respondent, v. Ronald BOWER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 79

635 N.Y.S.2d 79

222 A.D.2d 516

The PEOPLE, etc., Respondent, v. Ronald BOWER, Appellant.

Supreme Court, Appellate Division Second Department.

Dec. 11, 1995.

Lisa DiDio, Forest Hills, for appellant.

Richard A. Brown, Dist. Atty., Kew Gardens (Steven J. Chananie, Gary Fidel, and Christopher Gladd, of counsel), for respondent.

Before BALLETTA, J.P., and THOMPSON, JOY and GOLDSTEIN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Corrado, J.), rendered August 19, 1992, convicting him of sodomy in the first degree and attempted robbery in the first degree (two counts), upon a jury verdict, and imposing sentence. This appeal brings up for review the denial, after a hearing (Appelman, J.), of that branch of the defendant's omnibus motion which was to suppress identification evidence.

ORDERED that the judgment is affirmed.

We reject the defendant's contention that the indictment should be dismissed by virtue of the People's failure to disclose to the Grand Jury evidence of the initial photographic misidentification of the perpetrator by the two complainants, since the subject evidence was not entirely exculpatory and would not have materially influenced the Grand Jury (see, People v. Valles, 62 N.Y.2d 36, 476 N.Y.S.2d 50, 464 N.E.2d 418; People v. Liddell, 181 A.D.2d 795, 583 N.Y.S.2d 155; People v. Kaba, 177 A.D.2d 506, 575 N.Y.S.2d 716; People v. Kaminski, 156 A.D.2d 471, 548 N.Y.S.2d 757; People v. Lloyd, 141 A.D.2d 669, 529 N.Y.S.2d 801).

Likewise, the People's failure to preserve a tape recording of a telephone call made by the complainants to the 911 emergency line following the incident, in violation of the Rosario rule (see, People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881), did not warrant dismissal of the indictment (see, People v. Banch, 80 N.Y.2d 610, 593 N.Y.S.2d 491, 608 N.E.2d 1069; People v. Kelly, 62 N.Y.2d 516, 478 N.Y.S.2d 834, 467 N.E.2d 498; People v. Gibbs, 211 A.D.2d 641, 620 N.Y.S.2d 484). The sanction imposed by the court was appropriate under the circumstances.

We discern no basis to disturb the hearing court's determination that the lineup procedure was not tainted by suggestiveness, inasmuch as the defendant has failed to demonstrate "a substantial likelihood of misidentification" (People v. Jacobi, 159 A.D.2d 308, 552 N.Y.S.2d 587; see, People v. Chipp, 75 N.Y.2d 327, 553 N.Y.S.2d 72, 552 N.E.2d 608; see also, People v. Stokes, 156 A.D.2d 401, 548 N.Y.S.2d 354; People v. Rodriguez, 124 A.D.2d 611, 507 N.Y.S.2d 756).

The court did not improvidently exercise its discretion by declining to permit the jury to visit the scene of the crime (see, CPL 270.50[1]; People v. Kaufman, 156 A.D.2d 718, 549 N.Y.S.2d...