People v. Jacobi

Decision Date15 March 1990
Citation159 A.D.2d 308,552 N.Y.S.2d 587
PartiesThe PEOPLE of the State of New York, Respondent, v. Jerome JACOBI, Defendant-Appellant.
CourtNew York Supreme Court — Appellate Division

D.S. Ratner, for respondent.

N.E. Little, New York City, for defendant-appellant.

Before MURPHY, P.J., and KUPFERMAN, ROSS, ASCH and RUBIN, JJ.

MEMORANDUM DECISION.

Judgment of Supreme Court, Bronx County (Howard Silverman, J. at hearing; Phyllis Skloot Bamberger, J., at trial and sentence) rendered on September 8, 1988 convicting defendant after a jury trial, of two counts of robbery in the first degree (PL § 160.15) and one count of criminal possession of a weapon in the fourth degree (PL § 265.01) and sentencing him to two terms of four to twelve years' imprisonment and one term of six months to run concurrently is unanimously affirmed.

The defendant robbed a store manager and a customer at knifepoint in a well lit shop. In a lineup, defendant was viewed by one of the complainants and identified. Defendant argues that evidence of the lineup should have been suppressed because he was the only participant who had hazel eyes and stringy hair. A lineup will be suppressed if it creates a substantial likelihood of misidentification Manson v. Brathwaite, 432 U.S. 98, 116, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140. The Hearing Court found that the fillers were of similar body build and age. Although defendant alleges he was the only one with hazel eyes there was nothing about him that made him stand out from the rest.

In any event there was an independent source for the identification. Complainants had an ample opportunity to view defendant at close range for three to four minutes during the crime under well lit conditions. People v. Casanova, 124 A.D.2d 813, 509 N.Y.S.2d 41.

Defendant's argument that his motion for a mistrial should have been granted on the grounds that the jury heard evidence of a possible pre-trial photographic identification and of pattern crimes when the police officer testified he was assigned cases that matched up to a pattern is without merit.

The decision to grant or deny a mistrial is within the discretion of the Trial Court. People v. Ortiz, 54 N.Y.2d 288, 445 N.Y.S.2d 116, 429 N.E.2d 794. The Trial Court gave sufficient curative instructions to dispel any prejudice. People v. Rodriguez-Alvarez, 156 A.D.2d 733, 550 N.Y.S.2d 844 (2nd Dept.); People v. Blasich, 73 N.Y.2d 673, 682, 543 N.Y.S.2d 40, 541 N.E.2d 40.

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9 cases
  • Roldan v. Artuz
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • January 6, 2000
    ...402 (2d Dep't 1994) (lineup not unduly suggestive even if defendant was the only man with braided hair); People v. Jacobi, 159 A.D.2d 308, 308, 552 N.Y.S.2d 587, 588 (1st Dep't 1990) (defendant's stringy hair was insufficient to constitute an unduly suggestive lineup). 13. Because the Court......
  • People v. Pointer
    • United States
    • New York Supreme Court Appellate Division
    • August 17, 1998
    ...the lineup procedure was not tainted by suggestiveness (see, People v. Singleton, 222 A.D.2d 719, 636 N.Y.S.2d 796; People v. Jacobi, 159 A.D.2d 308, 552 N.Y.S.2d 587). Viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 34......
  • People v. Escalera
    • United States
    • New York Supreme Court Appellate Division
    • October 10, 1995
    ...time as defendant and his cohorts demanded valuables and dictated the actions of the complainants in their home (see, People v. Jacobi, 159 A.D.2d 308, 552 N.Y.S.2d 587, lv. denied 76 N.Y.2d 790, 559 N.Y.S.2d 995, 559 N.E.2d Viewing the evidence at trial in the light most favorable to the P......
  • People v. Hannah
    • United States
    • New York Supreme Court Appellate Division
    • December 2, 1996
    ...L.Ed.2d 70; People v. Singleton, 222 A.D.2d 719, 636 N.Y.S.2d 796; People v. Bower, 222 A.D.2d 516, 635 N.Y.S.2d 79; People v. Jacobi, 159 A.D.2d 308, 552 N.Y.S.2d 587). Moreover, the trial court's refusal to sanction the prosecution for the inadvertent destruction of a tape of a "911" call......
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