People v. Lundquist

• Decision Date: 05 June 1989
• Citation: 151 A.D.2d 505,542 N.Y.S.2d 295
• Parties: The PEOPLE, etc., Respondent, v. Scott LUNDQUIST, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 295

542 N.Y.S.2d 295

151 A.D.2d 505

The PEOPLE, etc., Respondent, v. Scott LUNDQUIST, Appellant.

Supreme Court, Appellate Division Second Department.

June 5, 1989.

Feldman and Feldman, Hauppauge (Arza Rayches Feldman, of counsel), for appellant.

Patrick Henry, Dist. Atty., Riverhead (Margaret McPartlin, of counsel), for respondent.

Before THOMPSON, J.P., and BROWN, LAWRENCE and RUBIN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the County Court, Suffolk County (Weissman, J.), rendered April 5, 1988, convicting him of burglary in the second degree, assault in the second degree, resisting arrest, and criminal possession of a controlled substance in the seventh degree (two counts), upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress identification testimony.

ORDERED that the judgment is affirmed.

Considering, as we must, the totality of circumstances surrounding the lineup identification (see, People v. Green, 143 A.D.2d 768, 533 N.Y.S.2d 474; People v. Rodriguez, 124 A.D.2d 611, 507 N.Y.S.2d 756), we find that the lineup was not impermissibly suggestive. The fillers in the lineup were sufficiently similar in appearance to the defendant so that no characteristic or visual clue would have oriented the viewer toward the defendant as a perpetrator of the crimes charged (see, e.g., People v. Nurse, 142 A.D.2d 738, 531 N.Y.S.2d 313; People v. Mason, 123 A.D.2d 720, 507 N.Y.S.2d 84, lv. denied 69 N.Y.2d 714, 512 N.Y.S.2d 1040, 504 N.E.2d 408). The law does not require that lineup fillers possess physical characteristics identical to those of the defendant but only that the fillers possess reasonably similar characteristics (see, e.g., People v. Stephens, 143 A.D.2d 692, 532 N.Y.S.2d 928; People v. Fisher, 143 A.D.2d 1037, 533 N.Y.S.2d 897).

Equally without merit is the defendant's contention that the evidence adduced at trial was legally insufficient to support his burglary and assault convictions. 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 349, 454 N.E.2d 932), we find, based on the complainant's ability to see the defendant as he fled her home and her subsequent lineup identification, that the evidence was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. We reject the defendant's contention that the evidence was legally insufficient to prove intent because the People failed to prove beyond a reasonable doubt that the jewelry found in the defendant's possession upon his arrest belonged to the complainant. The element of intent is subjective and, thus, may be inferred from the defendant's conduct and from the surrounding circumstances (see, People v. Mackey, 49 N.Y.2d 274, 425 N.Y.S.2d 288, 401 N.E.2d 398; People v. Miller, 149 A.D.2d 737, 540 N.Y.S.2d 521; People v. Rodriquez, 144 A.D.2d 501, 534 N.Y.S.2d 205). In the matter before us a reasonable juror could infer the defendant's criminal intent from the signs of forced entry, i.e. the back door which had been taken off its hinges, and the evidence that the complainant's jewelry box had been ransacked and items taken therefrom. Proof of possession of the fruits of the crime was not required to sustain the burglary conviction.

We further reject the defendant's claim that the evidence adduced was legally insufficient to establish that the police officer whom the defendant attacked suffered physical injury within the meaning of Penal Law §§ 10.00(9) and 120.05(3), i.e., impairment of physical condition or substantial pain. The police officer testified that as a result of the defendant punching him his nose became reddened and bloody and he was in "[a] lot of pain" which caused him to be absent from work for two days. The pain persisted for a few days. The injury suffered in the attack prompted the police officer to seek medical treatment at a local hospital where his nose was X-rayed. The record supports the jury's finding that the police officer suffered the requisite physical injury (see, People v. Greene, 70 N.Y.2d...