People v. Chamberlain

• Decision Date: 04 August 1983
• Citation: 466 N.Y.S.2d 860,96 A.D.2d 959
• Parties: The PEOPLE of the State of New York, Respondent, v. Ronald Sheldon CHAMBERLAIN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 860

466 N.Y.S.2d 860

96 A.D.2d 959

The PEOPLE of the State of New York, Respondent, v. Ronald Sheldon CHAMBERLAIN, Appellant.

Supreme Court, Appellate Division Third Department.

Aug. 4, 1983.

Steven T. Wax, Broome County Public Defender, Binghamton (Kenneth Ira Krigstein, Asst. Public Defender, Binghamton, of counsel), for appellant.

Patrick H. Mathews, Broome County Dist. Atty., Binghamton, for respondent.

Before SWEENEY, J.P., and CASEY, YESAWICH, WEISS and LEVINE, JJ.

MEMORANDUM DECISION.

Appeal from a judgment of the County Court of Broome County, rendered June 12, 1981, upon a verdict convicting defendant of the crimes of attempted murder in the second degree, robbery in the first degree, and criminal use of a firearm in the first degree.

On December 19, 1980, defendant was indicted for attempted murder in the second degree, robbery in the first degree and criminal use of a firearm in the first degree following an incident that occurred on the morning of September 12, 1980 during which one Paul May was shot and robbed outside his home by a lone assailant. On April 13, 1981, witness Lane positively identified defendant at a lineup, although Lane had previously been unable to identify defendant from a photo array. The suppression court determined that the identification procedures were not impermissibly suggestive and defendant was ultimately convicted, after jury trial, on each count in the indictment. Defendant's motion to set aside the verdict for juror misconduct was denied after a hearing.

Defendant first contends that the identification was flawed in that the procedures utilized by the police were unduly suggestive. We disagree. The record reveals that Lane was shown a photo array on November 18, 1980 consisting of 10 photos, including defendant's. Defendant asserts prejudice from the fact his photo was the only one without a name and police identification number printed on the back. We find the distinction without merit, not only because there is nothing in the record to establish Lane viewed the reverse side of the various photographs, but also because the photo array consisted of males similar in appearance and age to defendant. Moreover, since Lane was unable to make a positive identification from this photo array and defendant shaved his beard prior to the lineup, we find little likelihood of irreparable misidentification (see Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247; People v. Haynes, 88 A.D.2d 1070, 452 N.Y.S.2d 760).

As to the lineup procedure, we first note that the difference in height between defendant and the other four participants was minimal and certainly not unduly suggestive considering the obvious similarities between defendant and other participants. Nor do we find prejudice in the fact that defendant was the only lineup participant included in the prior photo array. While defendant produced expert testimony that such repetition created a possibility that Lane's identification resulted from the procedure used and not the witness' recollection, we look to the "totality of the circumstances" to determine the reliability of the identification (see People v. Jones, 85 A.D.2d 50, 448 N.Y.S.2d 543). Here, the difference in appearance between the men in the photo array (all bearded) and the lineup participants (all clean shaven), coupled with the passage of almost five months between the photo array and lineup, negates any suggestiveness. To be distinguished are People v. Hall, 81 A.D.2d 644, 438 N.Y.S.2d 148 and People v. Tindal, 69 A.D.2d 58, 418 N.Y.S.2d 815, in which repetitive photo arrays were conducted within a short span of time. In any event, the People have established by clear and convincing evidence that Lane had ample opportunity to view the assailant during the commission of the crime. He first observed the assailant hunched over May in the victim's front yard, and then again from a distance of about 75 feet when the assailant turned in Lane's direction for approximately 10 to 15 seconds. From these observations, Lane was able to provide an adequate facial description of the assailant. In our view, Lane's in-court identification had an independent origin and was properly admitted into evidence (People v. Van Buren, 87 A.D.2d 900, 449 N.Y.S.2d 366; People v. Rogers, 85 A.D.2d 843, 446 N.Y.S.2d 497).

Defendant next contends that the trial evidence failed to establish the assailant's identity beyond a reasonable doubt. Viewing the evidence in a light most favorable to the People (People v. Lipsky, 57 N.Y.2d 560, 563, 457 N.Y.S.2d 451, 443 N.E.2d 925), and in consideration of the foregoing discussion, we find the prosecution made a prima facie showing that...