People v. Mason
| Decision Date | 07 March 1988 |
| Citation | 525 N.Y.S.2d 694,138 A.D.2d 411 |
| Parties | The PEOPLE, etc., Respondent, v. Lorenzo MASON, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Philip L. Weinstein, New York City (Marilyn A. Kneeland, of counsel), for appellant.
Lorenzo Mason, pro se.
Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Nikki Kowalski and Richard T. Faughnan, of counsel), for respondent.
Before MANGANO, J.P., and LAWRENCE, SPATT and BALLETTA, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Cohen, J.), rendered June 9, 1983, convicting him of robbery in the second 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 testimony concerning photographic and lineup identification procedures.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the prosecution's failure to preserve the photographic array from which the complaining witnesses identified the defendant did not render the identification impermissibly suggestive where the array contained some fifty photos which had not been compiled specifically for this case. Ordinarily, it is incumbent upon the People to preserve a photo array so that a court may determine whether the procedure employed was unduly suggestive ( see, People v. Jerome, 111 A.D.2d 874, 490 N.Y.S.2d 790, lv. denied 66 N.Y.2d 764, 497 N.Y.S.2d 1038, 48 N.E.2d 124; People v. Barber, 96 A.D.2d 1112, 467 N.Y.S.2d 705; People v. Foti, 83 A.D.2d 641, 441 N.Y.S.2d 521). However, it is by now well established that when a photographic identification procedure involves showing a witness a pre-existing file consisting of a large number of photographs, the "sheer volume and scope of [the] procedure militates against the presence of suggestiveness" ( People v. Jerome, supra, 111 A.D.2d at 874, 490 N.Y.S.2d 790; see also, People v. Ludwigsen, 128 A.D.2d 810, 513 N.Y.S.2d 513, lv. denied 69 N.Y.2d 1006, 511 N.E.2d 98).
Furthermore, the record supports the hearing court's conclusion that the pretrial lineup procedure was not unduly suggestive ( see, People v. Rodriguez, 64 N.Y.2d 738, 485 N.Y.S.2d 976, 475 N.E.2d 443). There is no requirement that a defendant in a lineup must be surrounded by people nearly identical in appearance ( see, United States v. Reid, 517 F.2d 953 [2nd Cir.]; People v....
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People v. Chipp
...is no requirement, however, that a defendant in a lineup be surrounded by people nearly identical in appearance (People v. Mason, 138 A.D.2d 411, 412, 525 N.Y.S.2d 694; People v. Collins, 136 A.D.2d 720, 721, 523 N.Y.S.2d 1018). Here the implicit finding of the hearing court was that the di......
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People v. McDonald, 2008-09292, Ind. No. 1788/06.
...of photographs, the ‘sheer volume and scope of [the] procedure militates against the presence of suggestiveness' ” (People v. Mason, 138 A.D.2d 411, 412, 525 N.Y.S.2d 694, quoting People v. Jerome, 111 A.D.2d 874, 874, 490 N.Y.S.2d 790 ; see People v. Fields, 66 A.D.3d 799, 799, 887 N.Y.S.2......
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...that "[t]here is no requirement, ... that a defendant in a lineup [sic] be surrounded by people nearly identical in appearance (People v Mason, 138 AD2d 411, 412 ; People v Collins, 136 AD2d 720, 721 ..." (People v. Chipp, supra 75 N.Y.2d 327, at 336, 553 N.Y.S.2d 72, 552 N.E.2d 608) [mater......
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