People v. Lawal

Citation73 A.D.3d 1287,900 N.Y.S.2d 515
PartiesThe PEOPLE of the State of New York, Respondent, v. Aziza T. LAWAL, Also Known as T, Also Known as Tina, Appellant.
Decision Date13 May 2010
CourtNew York Supreme Court Appellate Division
900 N.Y.S.2d 515
73 A.D.3d 1287


The PEOPLE of the State of New York, Respondent,
v.
Aziza T. LAWAL, Also Known as T, Also Known as Tina, Appellant.


Supreme Court, Appellate Division, Third Department, New York.

May 13, 2010.

900 N.Y.S.2d 516

Joseph Nalli, Fort Plain, for appellant.

Louise K. Sira, District Attorney, Johnstown (James P. Riley of counsel), for respondent.

Before: CARDONA, P.J., MERCURE, SPAIN, KAVANAGH and GARRY, JJ.

GARRY, J.

73 A.D.3d 1287

Appeal from a judgment of the County Court of Fulton County (Hoye, J.), rendered

900 N.Y.S.2d 517
October 9, 2008, upon a verdict convicting defendant of the crimes of criminal sale of a controlled substance in the third degree (two counts) and criminal possession of a controlled substance in the third degree (two counts).

In March 2007, a confidential informant (hereinafter CI) contacted the Gloversville Police Department with information about a person named "T" or "Tina" who allegedly sold crack cocaine. Thereafter, the CI made two controlled buys of crack cocaine several hours apart at a laundromat in the City of Gloversville, Fulton County. After the CI identified defendant's photograph in a six-picture photo array as the person who sold him the crack cocaine, defendant was charged by a six-count indictment. Her motion to suppress the identification as unduly suggestive was denied after a Wade hearing. Following a jury trial, defendant was convicted of two counts of criminal possession of a controlled substance in the third degree and two counts of criminal sale of a controlled substance in the third degree, and sentenced to concurrent prison terms of two years on each count, to be followed by two years of postrelease supervision. Defendant now appeals.

Defendant contends that her suppression motion should have been granted because the pretrial identification procedure used by the police was unduly suggestive. We find that the People

73 A.D.3d 1288
met their initial burden to establish that the police conduct was reasonable and their procedure was not unduly suggestive, and that defendant did not meet her ultimate burden "to establish that the identification was infected by impropriety or undue suggestiveness" ( People v. Chatham, 55 A.D.3d 1045, 1046, 865 N.Y.S.2d 402 [2008]; see People v. Chipp, 75 N.Y.2d 327, 335, 553 N.Y.S.2d 72, 552 N.E.2d 608 [1990], cert. denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70 [1990]; People v. Coleman, 2 A.D.3d 1045, 1046, 770 N.Y.S.2d 144 [2003] ). The officer who prepared the photo array testified that he selected five photographs of women in defendant's age range with similar hairstyles and ethnic backgrounds from an internal police database. Defendant's photograph was not in the database and had to be obtained from a different source; as a result, its background was blank, while the other pictures had lines in the backgrounds. " 'A photo array is unduly suggestive if some characteristic of one picture draws the viewer's attention in such a way as to indicate that the police have made a particular selection' " ( People v. Davis, 18 A.D.3d 1016, 1018, 795 N.Y.S.2d 785 [2005], lv. denied 5 N.Y.3d 805, 803 N.Y.S.2d 34, 836 N.E.2d 1157 [2005], quoting People v. Yousef, 8 A.D.3d 820, 821, 778 N.Y.S.2d 326 [2004], lv. denied 3 N.Y.3d 743, 786 N.Y.S.2d 822, 820 N.E.2d 301 [2004] ). County Court correctly found that the minor background differences in this array were not sufficient to draw particular attention to defendant's picture, in light of various similar and dissimilar factors; as the court noted, the other pictures also did not have perfectly identical backgrounds ( see People v. Hunter, 273 A.D.2d 500, 502, 709 N.Y.S.2d 656 [2000], lv. denied 95 N.Y.2d 935, 721 N.Y.S.2d 611, 744 N.E.2d 147 [2000]; People v. Brown, 169 A.D.2d 934, 935, 564 N.Y.S.2d 834 [1991], lv. denied 77 N.Y.2d 958, 570 N.Y.S.2d 492, 573 N.E.2d 580 [1991] ). It further...

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21 cases
  • People v. Wells
    • United States
    • New York Supreme Court Appellate Division
    • 28 Julio 2016
    ...out for identification” ( 141 A.D.3d 1018 People v. Chipp, 75 N.Y.2d at 336, 553 N.Y.S.2d 72, 552 N.E.2d 608 ; see People v. Lawal, 73 A.D.3d 1287, 1288, 900 N.Y.S.2d 515 [2010] ; People v. Brown, 169 A.D.2d 934, 935, 564 N.Y.S.2d 834 [1991], lv. denied 77 N.Y.2d 958, 570 N.Y.S.2d 492, 573 ......
  • People v. Casanova
    • United States
    • New York Supreme Court Appellate Division
    • 13 Julio 2017
    ...Muniz, 93 A.D.3d 871, 872, 939 N.Y.S.2d 181 [2012], lv. denied 19 N.Y.3d 965, 950 N.Y.S.2d 117, 973 N.E.2d 215 [2012] ; People v. Lawal, 73 A.D.3d 1287, 1288, 900 N.Y.S.2d 515 [2010] ). "Accordingly, the relevant characteristics of the individuals included in a photograph array must be suff......
  • People v. Muniz
    • United States
    • New York Supreme Court Appellate Division
    • 1 Marzo 2012
    ...A.D.2d 934, 935, 564 N.Y.S.2d 834 [1991], lv. denied 77 N.Y.2d 958, 570 N.Y.S.2d 492, 573 N.E.2d 580 [1991]; see also People v. Lawal, 73 A.D.3d 1287, 1288, 900 N.Y.S.2d 515 [2010] ). Nor do the discrepancies between the description provided by Candelaria and defendant's appearance require ......
  • People v. Matthews
    • United States
    • New York Supreme Court Appellate Division
    • 20 Diciembre 2012
    ...327, 335, 553 N.Y.S.2d 72, 552 N.E.2d 608 [1990],cert. denied498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70 [1990];see People v. Lawal, 73 A.D.3d 1287, 1287–1288, 900 N.Y.S.2d 515 [2010] ). Further, defendant did not meet his “ultimate burden of proving that the procedure was unduly suggestive”......
  • Request a trial to view additional results

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