People v. Gairy

• Decision Date: 27 January 1986
• Citation: 497 N.Y.S.2d 775,116 A.D.2d 733
• Parties: The PEOPLE, etc., Respondent, v. Alvin GAIRY, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 775

497 N.Y.S.2d 775

116 A.D.2d 733

The PEOPLE, etc., Respondent, v. Alvin GAIRY, Appellant.

Supreme Court, Appellate Division,

Second Department.

Jan. 27, 1986.

Philip L. Weinstein, New York City, (Mark J. Clark of counsel), for appellant.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Michael Gore and John H. Larsen, of counsel), for respondent.

Before LAZER, J.P., and GIBBONS, EIBER and KUNZEMAN, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the Supreme Court, Kings County (Ramirez, J.), rendered May 25, 1983, convicting him of robbery in the second degree (two counts), and grand larceny in third degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial (Broomer, J.), after a hearing, of so much of defendant's omnibus motion as sought to suppress evidence.

Judgment affirmed.

We find unpersuasive defendant's contention that the pretrial lineup, from which he was identified by both the complainant and an eyewitness, was unduly suggestive. An examination of the lineup photograph leads us to agree with the hearing court's finding that, while two of the subjects appeared to be in their mid-twenties and three of the subjects appeared to be in their late teens or early twenties, defendant appeared older than his stated age of 17 and that the lineup therefore constituted a "fairly representative panel". Thus, we find that the age disparity in this case did not present a substantial risk of misidentification (see, United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; People v. Hazelton, 75 A.D.2d 694, 427 N.Y.S.2d 95). Nor was the lineup so "likely to produce an unreliable result" as to warrant the suppression of testimony concerning the pretrial identification (see, People v. Adams, 53 N.Y.2d 241, 251, 440 N.Y.S.2d 902, 423 N.E.2d 379). As to the balance of defendant's contentions concerning the lineup, we decline to overturn the hearing court's conclusion that complainant did not recognize the other persons who were in the lineup. Since the hearing court's decision to credit the complainant's testimony was not clearly erroneous and is entitled to great weight on appeal, we see no reason to disturb its findings (see, People v. Prochilo, 41 N.Y.2d 759, 395 N.Y.S.2d 635, 363 N.E.2d 1380; People v. Armstead, 98 A.D.2d 726, 469 N.Y.S.2d 137). We further note in connection with this issue that a disinterested eyewitness also identified defendant from the same lineup.

Furthermore, we find that the People's late disclosure of Brady material in response to a general request was harmless error, for the strong evidence presented by the People compels the conclusion that an earlier disclosure would not have "create[d] a reasonable doubt [as to defendant's guilt] which did not otherwise exist" (People v. Smith, 63 N.Y.2d 41, 67, 479 N.Y.S.2d 706, 468 N.E.2d 879, cert denied 469 U.S. 1227, 105 S.Ct. 1226, 84 L.Ed.2d 364; see, United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342). Indeed, the evidence overwhelmingly supported defendant's conviction. Defendant was positively identified by the complainant, a trained observer who had viewed his assailant for several minutes at...