People v. Lopez
| Decision Date | 15 September 1986 |
| Citation | 123 A.D.2d 360,506 N.Y.S.2d 371 |
| Parties | The PEOPLE, etc., Respondent, v. Jose LOPEZ, Appellant. |
| Court | New York Supreme Court — Appellate Division |
George T. Dunn, New York City for appellant and appellant pro se.
John J. Santucci, Dist. Atty., Kew Gardens (Alan Zuckerbrod and Andrea Shapiro, of counsel), for respondent.
Before LAZER, J.P., and MANGANO, BRACKEN and KOOPER, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Pitaro, J.), rendered May 31, 1983, convicting him of robbery in the first degree (two counts), upon a jury verdict, and sentencing him as a second felony offender to concurrent indeterminate terms of imprisonment of 10 to 20 years. The appeal brings up for review the denial, after a hearing (Agresta, J.), of that branch of the defendant's omnibus motion which was to suppress identification testimony.
Judgment affirmed.
On the instant appeal, the defendant argues, inter alia, that (1) Criminal Term erred in denying that branch of his omnibus motion which was to suppress testimony regarding the pretrial identification of the defendant by two eyewitnesses, (2) the trial court erred in allowing improper bolstering testimony during the redirect examination of one of the eyewitnesses, and during the direct examination of the investigating police officer and (3) his sentence as a second felony offender was improper, since the predicate felony conviction, obtained by plea of guilty in 1981 in New York County to the crime of criminal possession of stolen property in the second degree, was obtained in violation of his constitutional rights.
We reject the defendant's contentions.
The record clearly demonstrates that the identification procedure employed by the police during a photographic display and a subsequent lineup were devoid of any suggestiveness (see, People v. Kreutz, 110 A.D.2d 912, 488 N.Y.S.2d 737). Moreover, the defendant's counsel was present during the lineup and was given an opportunity to object, which he did not utilize. As the court stated in People v. Adams, 90 A.D.2d 1, 11, 455 N.Y.S.2d 616:
"It contradicts normal experience and common sense to suppose that defense counsel would have remained silent if he had observed that the lineup was so constituted as to point the witnesses unfairly to his client"
With respect to the alleged improper bolstering of the identification of the eyewitness Good, the record indicates that the defense counsel attempted to demonstrate, during cross-examination of the witness, that the witness had confused the defendant with the other perpetrators. Under the circumstances, the People's redirect examination of the eyewitness Good constituted a permissible form of rehabilitation...
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