People v. McLamb

• Decision Date: 31 May 1988
• Citation: 528 N.Y.S.2d 897,140 A.D.2d 717
• Parties: The PEOPLE, etc., Respondent, v. Frank McLAMB, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 897

528 N.Y.S.2d 897

140 A.D.2d 717

The PEOPLE, etc., Respondent, v. Frank McLAMB, Appellant.

Supreme Court, Appellate Division,

Second Department.

May 31, 1988.

John F. Middlemiss, Jr., Ronkonkoma (Louis E. Mazzola, of counsel), for appellant.

Patrick Henry, Dist. Atty., Riverhead (Mark D. Cohen, of counsel), for respondent.

Before BRACKEN, J.P., and BROWN, WEINSTEIN and RUBIN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the County Court, Suffolk County (Tisch, J.), rendered May 5, 1982, convicting him of robbery in the first degree, robbery in the second degree and assault in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for a 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 modified, on the law, by reducing the term of imprisonment imposed upon the defendant's conviction of robbery in the second degree from 12 1/2 to 25 years to 7 1/2 to 15 years; as so modified, the judgment is affirmed.

The defendant claims that the hospital showup identification was unduly suggestive because when he, a black man, was exhibited to the victim, he was surrounded by Caucasian police officers who, but for a detective, were also in uniform. It is undisputed however, that the showup took place within 15 minutes of the crime, and in the emergency room of Southside Hospital where the victim was being treated for stab wounds to the face and hands. Given the close proximity of the showup in time and place to the robbery and the fact that the defendant was arrested in the same hospital where the victim was being treated, the showup was an appropriate procedure for obtaining a prompt and reliable identification (see, People v. Love, 57 N.Y.2d 1023, 457 N.Y.S.2d 474, 443 N.E.2d 948; People v. Gilliard, 116 A.D.2d 657, 497 N.Y.S.2d 725, lv. denied 67 N.Y.2d 943, 502 N.Y.S.2d 1035, 494 N.E.2d 120). That the defendant was the only black male in the group of mostly uniformed, white police officers does not outweigh the benefits of an immediate identification ( People v. Thompson, 129 A.D.2d 655, 514 N.Y.S.2d 270; People v. Lee, 109 A.D.2d 1066, 487 N.Y.S.2d 411, lv. denied 60 N.Y.2d 616, 494 N.Y.S.2d 1038, 485 N.E.2d 242).

The hearing court also properly denied that branch of the defendant's motion which was to suppress an eyewitness's testimony regarding her spontaneous identification of him. The evidence adduced at the hearing was that the witness was making a statement to a detective in the precinct squad room when she identified the defendant who was brought in by a police officer who was unaware that a witness was in the squad room. This record...