People v. Collins

• Decision Date: 25 January 1988
• Citation: 136 A.D.2d 720,523 N.Y.S.2d 1018
• Parties: The PEOPLE, etc., Respondent, v. Woodrow COLLINS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 1018

523 N.Y.S.2d 1018

136 A.D.2d 720

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 burglary in the first degree (two counts), robbery in the first degree (two counts), and assault in the second degree, 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 challenges on several grounds the hearing court's denial of that branch of his omnibus motion which was to suppress identification testimony. First, the defendant claims that because of an alleged delay in his arraignment on an unrelated criminal complaint, we should find that formal prosecutorial proceedings had been initiated requiring the presence of counsel at the lineup. This claim is without merit. There is nothing in the record to suggest that the defendant's arraignment on the unrelated criminal charges was unduly delayed. Further, since no formal prosecutorial proceedings had yet been initiated with respect to the instant charges, the defendant had no right to have counsel present at the investigatory lineup ( 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. Mosley, 135 A.D.2d 662, 522 N.Y.S.2d 238; 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).

Second, the defendant argues that a remark by the police to the two witnesses, prior to their viewing of the lineup, that they had arrested two men who would be among the individuals exhibited, rendered the lineup impermissibly suggestive. This remark, which merely "informed the complainant that the police had picked up a suspect, not necessarily the person who robbed him", was not improper (see, 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; People v. Hernandez, supra ).

The defendant further raises the claim that the police lacked the requisite probable cause to arrest him and that therefore, the pretrial identification should have been suppressed as being tainted by the unlawful arrest. However, having failed to raise this claim before the hearing court, the defendant has not preserved it for appellate review (CPL 470.05[2]; People v. Warner, supra ).

Nor do we find that the lineup was impermissibly 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. 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, lv. denied 69 N.Y.2d 714, 512 N.Y.S.2d 1040, 504 N.E.2d 408). There is no requirement that a defendant in a lineup be surrounded by individuals nearly identical in appearance (People v. Rodriguez, supra ).

Upon the exercise of our factual review power, we are satisfied that the evidence established the defendant's guilt beyond a reasonable doubt, and that the verdict was not against the weight of the evidence (CPL 470.15[5] ).

The defendant charges that numerous instances of prosecutorial misconduct and trial court errors deprived him of a fair trial. We need not address the majority of the claims of prosecutorial misconduct because, having failed to raise any objection thereto at trial, the defendant has failed to preserve such claims for our review (CPL 470.05[2] ) and we decline to consider these claims in the interest of justice. To the extent that the defendant's contentions in this regard were preserved, we do...