People v. Brito
| Decision Date | 13 January 1992 |
| Citation | 179 A.D.2d 666,578 N.Y.S.2d 607 |
| Parties | The PEOPLE, etc., Respondent, v. Pascual BRITO, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Ronald Podolsky, New York City, for appellant.
Charles J. Hynes, Dist. Atty., Brooklyn (Jay M. Cohen, Carol Teague Schwartzkopf, and Dina L. Werfel, of counsel), for respondent.
Before KUNZEMAN, J.P., and EIBER, MILLER and RITTER, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Grajales, J.), rendered March 17, 1987, convicting him of robbery in the first degree (three counts), 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 was convicted of robbery in the first degree for his participation in the armed robberies of two Brooklyn stores. At the time of trial, five other indictments were pending against the defendant for the commission of similar but unrelated robberies. Following a pretrial Sandoval hearing (see, People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413), the Supreme Court ruled that if the defendant chose to testify, the People would be permitted to inquire into the underlying facts of two of the pending indictments, since these facts related to the defendant's credibility as a witness. On appeal, the defendant contends, inter alia, that the court's Sandoval ruling was erroneous because it violated his right against self-incrimination. However, as the defendant failed to advance this claim at the Sandoval hearing, his present contention is unpreserved for appellate review (see, People v. Young Boom Kim, 170 A.D.2d 707, 567 N.Y.S.2d 119; People v. Keating, 159 A.D.2d 977, 555 N.Y.S.2d 635), and we decline to reach it in the exercise of our interest of justice jurisdiction.
We further reject the defendant's contention that the lineup identifications conducted by the police were unduly suggestive. There is no requirement that a defendant in a lineup be accompanied by individuals nearly identical in physical appearance (see, People v. Stephens, 143 A.D.2d 692, 695, 532 N.Y.S.2d 928; People v. Diaz, 138 A.D.2d 728, 526 N.Y.S.2d 540), and the record reveals that the lineup stand-ins were reasonably similar in appearance to the defendant. Moreover, telling the witnesses that a suspect would be in the lineup was not unduly suggestive (see, People v. Rodriguez, 64 N.Y.2d 738, 740-741, 485 N.Y.S.2d 976, 475 N.E.2d 443; People v. Logan, 25 N.Y.2d 184, 192, 303...
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