People v. Collins

• Decision Date: 25 January 1988
• Citation: 523 N.Y.S.2d 1020,136 A.D.2d 722
• Parties: The PEOPLE, etc., Respondent, v. Woodrow COLLINS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 1020

523 N.Y.S.2d 1020

136 A.D.2d 722

The PEOPLE, etc., Respondent, v. Woodrow COLLINS, Appellant.

Supreme Court, Appellate Division Second Department.

Jan. 25, 1988.

George T. Dunn, New York City, for appellant.

Woodrow Collins, pro se.

John J. Santucci, Dist. Atty., Kew Gardens (Annette Cohen, of counsel), for respondent.

Before THOMPSON, J.P., and LAWRENCE, EIBER and SPATT, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Farlo, J.), rendered March 6, 1985, convicting him of robbery in the first degree (two counts) and burglary in the first degree (two counts), upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Balbach, J.), of that branch of the defendant's omnibus motion which was to suppress identification testimony.

ORDERED that the judgment is affirmed.

The defendant argues that a lineup identification was impermissibly suggestive because of a remark by the police to one of the complainants that the police had apprehended two men whom they suspected might be responsible for the robbery of the complainant and those apprehended individuals would be exhibited in a lineup. We do not find that this remark rendered the lineup improper. "[A]t most [it] informed the complainant that the police had picked up * * * suspect[s], not necessarily the persons[s] who robbed [her]" (People v. Warner, 125 A.D.2d 430, 431, 509 N.Y.S.2d 151, lv. denied 69 N.Y.2d 887, 515 N.Y.S.2d 1036, 507 N.E.2d 1106; see, People v. Hernandez, 122 A.D.2d 856, 505 N.Y.S.2d 908, lv. denied 69 N.Y.2d 712, 512 N.Y.S.2d 1038, 504 N.E.2d 406). Moreover, the defendant was not deprived of his right to counsel at the lineup as no formal prosecutorial proceedings had yet been initiated ( see, People v. Hawkins, 55 N.Y.2d 474, 450 N.Y.S.2d 159, 435 N.E.2d 376, rearg. denied sub nom. People v. Laffosse, 56 N.Y.2d 1032, 453 N.Y.S.2d 1028, 439 N.E.2d 402, cert. denied 459 U.S. 846, 103 S.Ct. 103, 74 L.Ed.2d 93; People v. Hernandez, supra ). The defendant's claim that his arraignment on an unrelated criminal complaint had been unnecessarily delayed and, therefore, his right to counsel had attached, is without merit (see, People v. Hopkins, 58 N.Y.2d 1079, 462 N.Y.S.2d 639, 449 N.E.2d 419). Nor do we find that the lineup was unduly suggestive or created a substantial likelihood of irreparable misidentification. The fill-ins for the lineup were sufficiently similar in appearance to the defendant such that the viewer would not have been oriented toward selecting the defendant as a participant in the crimes charged ( see, People v. Collins, 136 A.D.2d 720, 523 N.Y.S.2d 1018; People v. Rodriguez, 124 A.D.2d 611, 507 N.Y.S.2d 756; People v. Mason, 123 A.D.2d 720, 507 N.Y.S.2d 84). There is no requirement that a defendant in a lineup be surrounded by individuals nearly identical in appearance (People v. Rodriguez, supra ). In any event, there was clearly an independent basis for the complainant's in-court identification of the defendant since the complainant had ample opportunity to observe the defendant at close range under good lighting conditions for a period of about 30 to 40 minutes ( see, People v. Adams, 53 N.Y.2d 241, 440 N.Y.S.2d 902, 423 N.E.2d 379; Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140).

The defendant charges that he was deprived of a fair trial by numerous prejudicial and inflammatory comments made by the prosecutor in the course of his summation. Many of these issues have not been preserved for our review as the defense counsel registered no objection thereto before the trial court (see, CPL 470.05[2]; People v. Nuccie, 57 N.Y.2d 818, 819, 455 N.Y.S.2d 593, 441 N.E.2d 1111; People v. Marmolejos, 125 A.D.2d 335, 336, 509 N.Y.S.2d 64, lv. denied 69 N.Y.2d 830, 513 N.Y.S.2d 1037, 506 N.E.2d 548, lv. denied sub nom. People v. Pena, 69 N.Y.2d 831, 513 N.Y.S.2d 1039, 506 N.E.2d 550). In those instances in which an objection was made, any minimal prejudice which might have arisen from the prosecutor's remarks was overcome by the court's sustaining defense counsel's objections or its taking prompt curative action. In any event, the prosecutor's summation in the main was a proper response to the defense counsel's summation ( see, People v. Street, 124 A.D.2d 841, 508 N.Y.S.2d 558, lv. denied 69 N.Y.2d 834, 513 N.Y.S.2d 1042, 506 N.E.2d 553).

The defendant next contends that the trial court erred in refusing to grant his application characterized as one for a change of venue but which was, in effect, a request that the Trial Judge recuse himself because he had presided at an earlier trial of the...