People v. Nurse
| Decision Date | 25 July 1988 |
| Parties | The PEOPLE, etc., Respondent, v. Stephen NURSE, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Philip L. Weinstein, New York City (Elaine Unkeless, of counsel), for appellant.
Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Michael Gore, Victor Barall and James Duggen, of counsel), for respondent.
Before KUNZEMAN, J.P., and WEINSTEIN, EIBER and SPATT, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Hutcherson, J.), rendered April 17, 1985, convicting him of robbery in the first degree and grand larceny 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 the complainant's identification testimony.
ORDERED that the judgment is affirmed.
The defendant's contention that the complainant's identification testimony should have been suppressed because he looked dissimilar from the lineup fill-ins in certain respects is without merit. "While it is well established that the participants in a lineup should have the same general physical characteristics ( see, Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402), there is no requirement that a defendant in a lineup should be surrounded by individuals nearly identical in appearance ( see, People v. Rodriguez, 124 A.D.2d 611, 507 N.Y.S.2d 756)" ( People v. Burns, 138 A.D.2d 614, 615, 526 N.Y.S.2d 199). The fill-ins used in the lineup conducted at bar were sufficiently similar such that no characteristic or visual clue would have caused the viewer to select the defendant as the perpetrator ( see, 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 trial court did not err in permitting the prosecutor to cross-examine the alibi witnesses regarding their failure to come forward to law enforcement officials upon learning of the defendant's arrest. The prosecutor laid a proper foundation for such questioning ( see, People v. Dawson, 50 N.Y.2d 311, 428 N.Y.S.2d 311, 406 N.E.2d 771), and did not improperly indicate that the witnesses were obligated to come forward, and the court instructed the jury as to the limited probative value of the witnesses' failure to come forward. The fact that the witnesses did speak with the defendant's attorney within a...
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