People v. Darnell
| Decision Date | 09 January 1989 |
| Citation | 146 A.D.2d 583,536 N.Y.S.2d 505 |
| Parties | The PEOPLE, etc., Respondent, v. Kenneth DARNELL, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Alan Schneier, Valley Stream, for appellant.
Kenneth Darnell, pro se.
Denis Dillon, Dist. Atty., Mineola (Anthony J. Girese and Peter Shapiro, of counsel), for respondent.
Before BROWN, J.P., and LAWRENCE, EIBER and KOOPER, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from a judgment of the County Court, Nassau County (Delin, J.), rendered July 23, 1986, convicting him of robbery in the first degree and robbery in the second 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.
The defendant's contention that the hearing court erred in denying suppression of identification testimony based upon the employment of impermissibly suggestive pretrial identification procedures is without merit. A pretrial identification procedure may be considered impermissibly suggestive and, therefore, violative of due process, only when it is the result of improper conduct by law enforcement officials (see, People v. Marshall, supra, 91 A.D.2d 643, 456 N.Y.S.2d 826). The record here clearly establishes that the witnesses' initial viewings of the defendant's photograph in the newspaper in connection with an unrelated incident occurred without police involvement, and therefore may not be considered suggestive (see, People v. Whitaker, 126 A.D.2d 688, 511 N.Y.S.2d 112; People v. Marshall, supra, 91 A.D.2d 643, 456 N.Y.S.2d 826). The second viewing of the photograph by the witnesses was merely confirmatory, and not an identification (see, People v. Whitaker, supra, 126 A.D.2d 688 at 689, 511 N.Y.S.2d 112). Furthermore, the hearing court's determination that both the photographic array and the lineup viewed by the eyewitnesses were not unduly suggestive is supported by the weight of the evidence and will not be disturbed. We note that the inconsistencies in the witnesses' identification testimony go to the weight to be accorded it, and not to its admissibility.
The defendant also contends that he was denied his right to the effective assistance of counsel because his attorney failed to move to dismiss the indictment on the basis that he was denied his right to a speedy trial. The record reveals that ...
To continue reading
Request your trial
-
People v. Harrell
...there is no police arrangement. E.g., People v. Whisby, 48 N.Y.2d 834, 424 N.Y.S.2d 344, 400 N.E.2d 286 (1979); People v. Darnell, 146 A.D.2d 583, 536 N.Y.S.2d 505 (2d Dept.), lv. denied, 73 N.Y.2d 976, 540 N.Y.S.2d 1010, 538 N.E.2d 362 (1989); People v. Hunter, 173 A.D.2d 321, 575 N.Y.S.2d......
-
People v. Quinones
...photos of defendant. Koli was not shown the photos as a result of any police-initiated identification procedure (see, People v. Darnell, 146 A.D.2d 583, 536 N.Y.S.2d 505, lv. denied 73 N.Y.2d 976, 540 N.Y.S.2d 1010, 538 N.E.2d 362) and, in any event, the circumstances of the showing were no......
-
People v. Wooten
...is based on material dehors the record, and thus the appropriate procedural vehicle is a motion pursuant to CPL 440.10 (see, People v Darnell, 146 A.D.2d 583, 584, lv denied 73 N.Y.2d 976; People v Miller, 142 A.D.2d 970). With respect to defendant's remaining contentions concerning ineffec......
-
People v. Beaufort-Cutner
...his arrest tainted the identification procedures. The publicity occurred without police involvement (see, People v. Darnell, 146 A.D.2d 583, 584, 536 N.Y.S.2d 505, lv. denied 73 N.Y.2d 976, 540 N.Y.S.2d 1010, 538 N.E.2d We have considered the remaining contentions raised in defendant's pro ......