People v. Briggs, 11327

• Decision Date: 19 June 2001
• Docket Number: No. 11327,11327
• Citation: 728 N.Y.S.2d 486,285 AD2d 514
• Parties: (A.D. 2 Dept. 2001) The People, etc., respondent, v. Bernard Briggs, appellant. (Ind./97) 1999-00334 : SECOND JUDICIAL DEPARTMENT Argued-
• Court: New York Supreme Court — Appellate Division

Page 486

728 N.Y.S.2d 486 (A.D. 2 Dept. 2001)

The People, etc., respondent, v. Bernard Briggs, appellant (Ind. No. 11327/97)

1999-00334

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT

Argued-June 19, 2001

July 9, 2001

Lynn W.L. Fahey, New York, N.Y. (Jay L. Weiner of counsel), for appellant.

Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Camille O'Hara Gillespie, and Skadden, Arps, Slate, Meagher & Flom, LLP [Michael J. Balch] of counsel), for respondent (one brief filed).

DAVID S. RITTER, J.P., WILLIAM D. FRIEDMANN, DANIEL F. LUCIANO, NANCY E. SMITH, JJ.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Martin, J.), rendered December 9, 1998 convicting him of robbery in the first degree and attempted 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.

The defendant's contention that the lineup was unduly suggestive because the police failed to correct for height and hairstyle differences is without merit. While due process requires that pretrial identification procedures be fair, there is no requirement that the defendant must be surrounded by fillers who have identical physical characteristics (see, People v Gelzer, 224 A.D.2d 443). To the contrary, the fillers need only resemble the defendant (see, People v Keller, 242 A.D.2d 735). The photograph taken of the lineup reflects that the fillers resembled the defendant, even though all of the physical characteristics of all of the participants were not clearly visible. Lineup photographs need not be in the best condition to support a determination that the lineup was fair (see, People v Brown, 269 A.D.2d 539). Accordingly, we decline to disturb the hearing court's conclusion that the lineup procedure was fair and not unduly suggestive (see, People v Prochilo, 41 N.Y.2d 759).

The defendant's contention that the People failed to prove that one of his victims suffered a serious physical injury is without merit. Viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 N.Y.2d 620), we find that it was legally sufficient to support the defendant's conviction of attempted robbery in the first degree. There is ample evidence of serious physical injury, as the...