People v. Magee
| Decision Date | 21 July 1986 |
| Parties | The PEOPLE, etc., Respondent, v. Kevin MAGEE, Appellant. |
| Court | New York Supreme Court — Appellate Division |
John Quinlan Kelly, New York City, for appellant.
Carl A. Vergari, Dist. Atty., White Plains (Joseph M. Latino and Anthony J. Servino, of counsel), for respondent.
Before BROWN, J.P., and WEINSTEIN, RUBIN and KOOPER, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Nastasi, J.), rendered April 22, 1985, convicting him of burglary in the first degree, attempted sexual abuse in the first degree, assault in the second degree, and assault in the third degree, 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.
Judgment affirmed, and case remitted to the Supreme Court, Westchester County, for further proceedings pursuant to CPL 460.50(5).
The defendant's first contention is that certain photographic identification procedures were suggestive and required suppression of the in-court identifications by the complainant and her roommate. Specifically, the defendant alleges that the procedures were suggestive because (1) the photograph of the defendant, who was described as having reddish blond hair and being below average in size, was placed in the same array with photographs of persons who were either much taller, much heavier, or who had darker hair, (2) there were variations in the finish on the various photographs, (3) the two witnesses were in the same room while examining the photographs, and (4) the complainant was shown only a single photograph of the defendant at a pretrial hearing held on January 16, 1985.
Suppression was not required. The photographs used in the array showed only the heads of the persons depicted and there was no way of telling the height or weight of any of them. Furthermore, the photograph of the defendant showed him with dark-colored hair. It therefore could not be considered suggestive to place his photograph in an array with the photographs of five dark-haired individuals. It is true, as the defendant contends, that all of the photographs did not have the same type finish. However, since three photographs had one type of finish and the other three a second type, there was nothing about the defendant's photograph to draw the viewer's attention to it or otherwise indicate that the police had made a particular selection (see, People v. Fox, 65 A.D.2d 880, 410 N.Y.S.2d 180; People v. Shea, 54 A.D.2d 722, 387 N.Y.S.2d 477).
Although the testimony at the Wade hearing indicated that each of the witnesses was present in the same room while the...
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People v. Range
...during the entire altercation (see People v. Mallory , 126 A.D.2d 750, 751, 511 N.Y.S.2d 139 [2d Dept. 1987] ; People v. Magee , 122 A.D.2d 227, 228, 504 N.Y.S.2d 758 [2d Dept. 1986] ). The officer accurately described defendant's gender, race, and clothing, and accurately noted that defend......
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...v. Cicero, 119 A.D.2d 687, 500 N.Y.S.2d 809, lv. denied 68 N.Y.2d 666, 505 N.Y.S.2d 1031, 496 N.E.2d 689; see also, People v. Magee, 122 A.D.2d 227, 504 N.Y.S.2d 758). Similarly, the complainant's subsequent line-up identifications of the defendant were not tainted by any undue suggestivene......
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...attention was on defendant during the entire altercation (see People v Mallory, 126 A.D.2d 750, 751 [2d Dept 1987]; People v Magee, 122 A.D.2d 227, 228 [2d Dept 1986]). The officer accurately described defendant's gender, race, and clothing, and accurately noted that defendant was wearing a......
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