People v. Miller

• Decision Date: 20 December 1993
• Citation: 605 N.Y.S.2d 342,199 A.D.2d 422
• Parties: The PEOPLE, etc., Respondent, v. Philip MILLER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 342

605 N.Y.S.2d 342

199 A.D.2d 422

The PEOPLE, etc., Respondent, v. Philip MILLER, Appellant.

Supreme Court, Appellate Division Second Department.

Dec. 20, 1993.

John M. Leventhal, Brooklyn, for appellant.

Charles J. Hynes, Dist. Atty, Brooklyn (Roseann B. MacKechnie, Sholom J. Twersky, and Lauren Celeste Joyner, of counsel), for respondent.

Before O'BRIEN, J.P., and COPERTINO, PIZZUTO and SANTUCCI, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Grajales, J.), rendered August 9, 1991, convicting him of robbery in the second 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.

ORDERED that the judgment is affirmed.

The defendant argues, inter alia, that both the lineup and the in-court identification should have been suppressed because three of the lineup fillers had skin tones significantly darker than his. However, it is clear that lineup fillers need not be identical in physical characteristics to the defendant, but only need be reasonably similar in appearance (see, People v. Lundquist, 151 A.D.2d 505, 506, 542 N.Y.S.2d 295). Skin tone is only one of the factors to be considered in deciding "reasonable similarity" (see, People v. Phillips, 145 A.D.2d 656, 536 N.Y.S.2d 171), and differences in skin tone alone will not render a lineup unduly suggestive (see, People v. Chipp, 75 N.Y.2d 327, 553 N.Y.S.2d 72, 552 N.E.2d 608, cert denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70). The hearing court, which saw and heard the witnesses, found that the lineup was not suggestive ( see, e.g., people v. prochILo, 41 n.y.2D 759, 395 n.y.s.2D 635, 363 n.e.2D 1380), and its determination should not be disturbed if supported by the record. Moreover, contrary to the defendant's contention, "[t]he fact that the * * * photograph[s] of the lineup were apparently lost sometime after trial does not give rise to an inference that * * * the lineup was suggestive, since the hearing court had the opportunity to view the photographs and determined that they were not unduly suggestive" (People v. Evans, 184 A.D.2d 597, 599, 585 N.Y.S.2d 445; People v. Gonzalez, 168 A.D.2d 283, 562 N.Y.S.2d 508).

We find that the trial court did not improvidently exercise its discretion in permitting the prosecution to impeach the defendant with the underlying...