People v. Ortiz
| Decision Date | 03 May 2011 |
| Citation | 2011 N.Y. Slip Op. 03880,922 N.Y.S.2d 192,84 A.D.3d 839 |
| Parties | The PEOPLE, etc., respondent,v.Oscar ORTIZ, appellant. |
| Court | New York Supreme Court — Appellate Division |
84 A.D.3d 839
922 N.Y.S.2d 192
2011 N.Y. Slip Op. 03880
The PEOPLE, etc., respondent,
v.
Oscar ORTIZ, appellant.
Supreme Court, Appellate Division, Second Department, New York.
May 3, 2011.
[922 N.Y.S.2d 192]
Martin Geoffrey Goldberg, Franklin Square, N.Y., for appellant.Kathleen M. Rice, District Attorney, Mineola, N.Y. (Andrea M. DiGregorio of counsel), for respondent.JOSEPH COVELLO, J.P., DANIEL D. ANGIOLILLO. THOMAS A. DICKERSON, and L. PRISCILLA HALL, JJ.
[84 A.D.3d 839] Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Donnino, J.), rendered March 3, 2010, convicting him of robbery in the first degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing (St.George, J.), of the defendant's motion to suppress identification testimony.
ORDERED that the judgment is affirmed.
The hearing court properly declined to suppress identification [84 A.D.3d 840] testimony. “A photographic display is suggestive when some characteristic of one picture draws the viewer's attention to it, indicating that the police have made a particular selection” ( People v. Miller, 33 A.D.3d 728, 728–729, 821 N.Y.S.2d 904; see People v. Wright, 297 A.D.2d 391, 746 N.Y.S.2d 611; People v. Williams, 289 A.D.2d 270, 270–271, 734 N.Y.S.2d 463; People v. Cherry, 150 A.D.2d 475, 475–476, 541 N.Y.S.2d 78). Contrary to the defendant's contention, there is no indication that his photograph differed significantly from the photographs of the fillers in either the photo array viewed by the complainant on April 17, 2009, or the photo array viewed by the complainant on May 21, 2009 ( see People v. Ferguson, 55 A.D.3d 926, 927, 866 N.Y.S.2d 346; People v. Turman, 275 A.D.2d 901, 713 N.Y.S.2d 390; People v. Boone, 251 A.D.2d 423, 674 N.Y.S.2d 121). Moreover, even if the photographic procedure was unduly suggestive, the passage of approximately six weeks between the complainant's viewing of the last photo array and her identification of the defendant at a lineup on July 3, 2009, was sufficient to attenuate any possible taint from the viewing of the photo array ( see People v. Leibert, 71 A.D.3d 513, 514, 896 N.Y.S.2d 347; People v. Butts, 279 A.D.2d 587, 719 N.Y.S.2d 680; People v. Hamilton, 271 A.D.2d 618, 619, 707 N.Y.S.2d 460; People v. Young, 167 A.D.2d 366, 562 N.Y.S.2d 446; People v. Allah, 158 A.D.2d 605, 606, 551 N.Y.S.2d 577).
The defendant argues that the grand jury proceedings...
To continue reading
Request your trial
-
People v. Brown
...Court's handling of the jury's notes, reversal is required (see People v. Silva, 24 N.Y.3d 294, 998 N.Y.S.2d 154 ; People v. Lockley, 84 A.D.3d at 839, 922 N.Y.S.2d 476 ). The People are correct that a timely objection to an alleged O'Rama error may be required where defense counsel had “kn......
-
People v. Nealon
...Court's handling of the jury's notes ( see People v. O'Rama, 78 N.Y.2d at 279–280, 574 N.Y.S.2d 159, 579 N.E.2d 189;People v. Lockley, 84 A.D.3d at 839, 922 N.Y.S.2d 476;People v. McGhee, 103 A.D.3d at 668, 960 N.Y.S.2d 436). Accordingly, the judgment must be reversed and a new trial ordere......
-
People v. Zamfino
...that the police have made a particular selection" ( People v. Miller, 33 A.D.3d 728, 728–729, 821 N.Y.S.2d 904 ;see People v. Ortiz, 84 A.D.3d 839, 840, 922 N.Y.S.2d 192 ; People v. Ferguson, 55 A.D.3d 926, 927, 866 N.Y.S.2d 346 ). Here, all of the other men depicted in the six-photograph a......
-
People v. Staton
...of the defendant at a lineup, was insufficient to attenuate any possible taint from the viewing of the array (cf. People v. Ortiz, 84 A.D.3d 839, 840, 922 N.Y.S.2d 192 ; People v. Nedd, 79 A.D.3d 1150, 913 N.Y.S.2d 564 ; People v. Butts, 279 A.D.2d 587, 719 N.Y.S.2d 680 ). Consequently, it ......