People v. Perkins

• Decision Date: 28 January 2015
• Citation: 124 A.D.3d 915,2 N.Y.S.3d 220,2015 N.Y. Slip Op. 00787
• Parties: The PEOPLE, etc., respondent, v. Anthony PERKINS, appellant.
• Court: New York Supreme Court — Appellate Division

124 A.D.3d 915

2 N.Y.S.3d 220

2015 N.Y. Slip Op. 00787

The PEOPLE, etc., respondent

v.Anthony PERKINS, appellant.

Supreme Court, Appellate Division, Second Department, New York.

Jan. 28, 2015.

Lynn W.L. Fahey, New York, N.Y. (Paul Skip Laisure and Patterson Belknap Webb & Tyler LLP [Stephen P. Younger and Maggie Wittlin ], of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Nicoletta J. Caferri, and Jennifer Hagan of counsel), for respondent.

RUTH C. BALKIN, J.P., THOMAS A. DICKERSON, SANDRA L. SGROI, and JEFFREY A. COHEN, JJ.

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kron, J.), rendered December 6, 2010, convicting him of robbery in the first 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 lineup identification testimony.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, the hearing court properly declined to suppress lineup identification evidence. “ ‘While lineup participants should share the same general physical characteristics, there is no requirement that a defendant in a lineup be surrounded by persons who are nearly identical in appearance’ ” (People v. Fleming, 65 A.D.3d 702, 703, 884 N.Y.S.2d 477, quoting People v. Marshall, 51 A.D.3d 821, 821, 859 N.Y.S.2d 664 ). Here, the photographs taken at the lineup reveal that the participants were similar to the defendant in skin tone, attire, and age, and that minor differences in height did not render the lineup unduly suggestive (see People v. Marshall, 51 A.D.3d at 821, 859 N.Y.S.2d 664 ; People v. Johnson, 33 A.D.3d 939, 940, 826 N.Y.S.2d 295 ). The defendant's dreadlock hairstyle was not part of the subject complainants' descriptions of the perpetrator (see People v. Marshall, 51 A.D.3d at 821, 859 N.Y.S.2d 664 ; People v. Jordan, 44 A.D.3d 875, 876, 843 N.Y.S.2d 450 ), was minimized by the fact that the participants all wore hats, and, under the circumstances of this case, did not render the lineup unduly suggestive (see People v. Marshall, 51 A.D.3d at 821, 859 N.Y.S.2d 664 ; People v. Diggs, 19 A.D.3d 1098, 1099, 796 N.Y.S.2d 802 ; People v. Briggs, 285 A.D.2d 514, 728 N.Y.S.2d 486 ).

Furthermore, contrary to the defendant's contention, the Supreme Court providently exercised its discretion in denying his motion, made during the trial, to reopen the suppression hearing. The defendant failed to demonstrate that the new facts he proffered in support of the motion were likely to affect the original determination (see CPL 710.40[4] ; People v. Clark, 88 N.Y.2d 552, 555, 647 N.Y.S.2d 479, 670 N.E.2d 980 ; People v. Moore, 118 A.D.3d 916, 918, 988 N.Y.S.2d 80 ).

The Supreme Court providently exercised its discretion in denying the defendant's request for an adverse inference instruction concerning the People's failure to preserve audio recordings of certain 911 emergency telephone calls. There was no bad faith or lack of diligence on the part of the People, and the defendant was not prejudiced, inasmuch as he was furnished with printed summary reports of the content of the calls, commonly known as sprint reports, which afforded him a sufficient opportunity to impeach the People's witness (see People v. Brown, 92 A.D.3d 455, 456–457,...