People v. Brathwaite
| Decision Date | 09 July 1990 |
| Parties | The PEOPLE, etc., Respondent, v. Graham BRATHWAITE, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Lewis & Fiore, New York City (David L. Lewis, of counsel), for appellant.
Graham Brathwaite, pro se.
Charles J. Hynes, Dist. Atty., Brooklyn (Jay M. Cohen, Ann Bordley and Robin A. Forshaw, of counsel), for respondent.
Before THOMPSON, J.P., and RUBIN, ROSENBLATT and MILLER, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Alfano, J.), rendered December 19, 1984, convicting him of robbery in the first degree (two counts), upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Uviller, J.), of that branch of the defendant's omnibus motion which was to suppress identification testimony.
ORDERED that the judgment is affirmed.
Within approximately 90 minutes after committing a robbery of a fast-food restaurant in Brooklyn, the defendant was seen in another nearby fast-food restaurant by a witness who had observed him fleeing from the first restaurant. This witness informed police of his observations and a victim of the robbery was transported to the second restaurant. Looking inside from a police car, the victim identified the defendant as one of the robbers, following which the defendant was placed under arrest.
Contrary to the defendant's contentions, this did not constitute an unduly suggestive showup identification (see, People v. Ghee, 139 A.D.2d 663, 527 N.Y.S.2d 303). Indeed, the defendant was identified without prompting (see, People v. Evans, 123 A.D.2d 328, 506 N.Y.S.2d 221) by a victim who observed him while he was still at large (see, People v. Mack, 116 A.D.2d 593, 497 N.Y.S.2d 452). Moreover, the defendant was seen in the restaurant surrounded by several other individuals, so that the identification procedure was more in the nature of an impromptu on-the-scene lineup than a potentially objectionable one-on-one police arranged showup (see, People v. Dolphin, 77 A.D.2d 571, 429 N.Y.S.2d 732).
Similarly, the identification testimony was not subject to suppression as a result of unduly suggestive lineups. Examining the Wade hearing testimony, which is the only testimony to be considered in reviewing the propriety of the suppression court's ruling (see, People v. Lott, 143 A.D.2d 686, 533 N.Y.S.2d 16; People v. Anderson, 127 A.D.2d 774, 512 N.Y.S.2d 168), we find that the lineup procedures employed were not improper. Although the defendant was exhibited wearing the...
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