People v. Diaz

• Decision Date: 28 March 1988
• Citation: 138 A.D.2d 728,526 N.Y.S.2d 540
• Parties: The PEOPLE, etc., Respondent, v. Angel DIAZ, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 540

526 N.Y.S.2d 540

138 A.D.2d 728

The PEOPLE, etc., Respondent, v. Angel DIAZ, Appellant.

Supreme Court, Appellate Division,

Second Department.

March 28, 1988.

Philip L. Weinstein, New York City (Theresa McGovern, of counsel), for appellant.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Miriam R. Best and Sherry B. Bokser, of counsel), for respondent.

Before BROWN, J.P., and KUNZEMAN, KOOPER and BALLETTA, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Goldstein, J.), rendered November 17, 1983, convicting him of robbery in the first degree (two counts), and burglary in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contentions, the hearing court properly concluded that under the totality of the circumstances the pretrial lineup conducted at bar was not unduly suggestive ( see, People v. Smith, 137 A.D.2d 732, 524 N.Y.S.2d 817; People v. Rodriguez, 124 A.D.2d 611, 507 N.Y.S.2d 756). The defendant's claim that the discrepancy between his hair length and that of the stand-ins participating in the lineup prejudicially focused attention on him is without merit. There is no requirement that a defendant in a lineup be accompanied by individuals nearly identical in appearance ( see, People v. Eleby, 137 A.D.2d 707, 525 N.Y.S.2d 53; People v. Wiley, 137 A.D.2d 735, 524 N.Y.S.2d 821; People v. Rodriguez, supra ). An examination of the hearing testimony reveals that the lineup stand-ins were all similar to the defendant in terms of ethnic background, height, weight and age. Moreover, the participants were directed by the Assistant District Attorney to pull back their hair to diminish any hair length discrepancy (see, People v. Wiley, supra ).

Additionally, although the People should have preserved the photograph of the lineup for appellate review (cf., People v. Eleby, supra; People v. Johnson, 106 A.D.2d 469, 482 N.Y.S.2d 563), any inference of suggestiveness attributable to this failure was rebutted by the circumstances surrounding the identification procedure, the ability of the defendant to cross-examine the complainant regarding the photograph at the hearing and at trial, and the fact that both the hearing and trial courts had the opportunity to review the photograph and determine that the lineup was not suggestive.

In light of the overall propriety of the lineup procedure, we find that the conduct of the police in informing the identifying witness that she was going to view a suspect was "not in and of itself sufficient to contaminate the identification" (People v. Logan, 25 N.Y.2d 184, 192, 303 N.Y.S.2d 353, 250 N.E.2d 454, cert. denied 396 U.S. 1020, 90 S.Ct. 592, 24 L.Ed.2d 513, rearg. dismissed 27 N.Y.2d 737, 314 N.Y.S.2d 1029, 262 N.E.2d 683; see also, People v. Rodriquez, 64 N.Y.S.2d 738, 740-741, 485 N.Y.S.2d 976, 475 N.E.2d 443). In any event, we find that the record supports the hearing court's determination that an...