People v. Burgos
| Decision Date | 02 May 1994 |
| Parties | The PEOPLE, etc., Respondent, v. Anastacio BURGOS, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Christopher Renfroe, Forest Hills, for appellant.
Richard A. Brown, Dist. Atty., Kew Gardens (Steven J. Chananie, Gary Fidel, and Jaewon Chung, of counsel), for respondent.
Before BRACKEN, J.P., and LAWRENCE, RITTER and PIZZUTO, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Rotker, J.), rendered September 12, 1991, convicting him of rape in the first degree, burglary in the first degree, assault in the second degree, and sexual abuse 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.
We disagree with the defendant's contention that he was deprived of the opportunity to demonstrate the suggestiveness of the identification procedures to the hearing court, because the People produced a black and white copy of his photograph rather than the original color photograph that the complainant selected during the second photographic identification procedure.
While generally it is incumbent on the People to preserve a photographic array so that a court may determine whether the procedure employed was unduly suggestive (see, People v. Barber, 96 A.D.2d 1112, 467 N.Y.S.2d 705), the failure of the People to produce the original color photograph selected by the complainant does not warrant reversal of the hearing court's determination. First, any resulting inference of suggestiveness was dispelled by the testimony of the detectives detailing the procedure used to safeguard against suggestiveness, especially the "sheer volume" of the photographs viewed, here over 500 photographs, as well as the fact that at that point the police had not focused on any particular suspect (see, People v. Campos, 197 A.D.2d 366, 602 N.Y.S.2d 134; People v. Jerome, 111 A.D.2d 874, 490 N.Y.S.2d 790). Second, the evidence established that the black and white photograph of the defendant, which had been produced at the hearing, was a photograph of the original color photograph viewed by the complainant, i.e., the black and white photo was a reproduction of the color photograph. Under the circumstances, the failure to produce the original color...
To continue reading
Request your trial
-
People v. McDonald, 2008-09292, Ind. No. 1788/06.
...People v. Fields, 66 A.D.3d 799, 799, 887 N.Y.S.2d 182 ; People v. Ashby, 289 A.D.2d 588, 588, 735 N.Y.S.2d 715 ; People v. Burgos, 204 A.D.2d 344, 345, 611 N.Y.S.2d 605 ; People v. Faulk, 192 A.D.2d 717, 717, 597 N.Y.S.2d 148 ; People v. Stokes, 139 A.D.2d 785, 785, 527 N.Y.S.2d 529 ; Peop......
-
People v. Dobbins
...2008 N.Y. Slip Op. 51747[U] [Sup.Ct., Kings County]; cf. People v. Jones, 43 A.D.3d 1296, 1298, 843 N.Y.S.2d 880; People v. Burgos, 204 A.D.2d 344, 345, 611 N.Y.S.2d 605; People v. Stokes, 139 A.D.2d 785, 527 N.Y.S.2d 529). We need not address whether the subsequent lineup at which the defe......
-
People v. Robinson
...dispel any inference of suggestiveness, as it is unknown how many photographs were viewed by the complainants (cf. People v. Burgos, 204 A.D.2d 344, 345, 611 N.Y.S.2d 605 ; People v. Campos, 197 A.D.2d at 367, 602 N.Y.S.2d 134 ; People v. Stokes, 139 A.D.2d 785, 786, 527 N.Y.S.2d 529 ). We ......
- People v. Brown