People v. Peterkin

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: PRESENT: SMITH, J.P., PERADOTTO, CARNI, LINDLEY, AND SCONIERS, JJ.
• Citation: People v. Peterkin, 81 A.D.3d 1358, 921 N.Y.S.2d 744, 2011 N.Y. Slip Op. 933 (N.Y. App. Div. 2011)
• Decision Date: 10 February 2011
• Parties: The PEOPLE of the State of New York, Respondent,v.Rashad PETERKIN, Defendant–Appellant.

81 A.D.3d 1358

921 N.Y.S.2d 744

2011 N.Y. Slip Op. 00933

The PEOPLE of the State of New York, Respondent,

v.Rashad PETERKIN, Defendant–Appellant.

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

Feb. 10, 2011.

Timothy P. Donaher, Public Defender, Rochester (David R. Juergens of Counsel), for Defendant–Appellant.Michael C. Green, District Attorney, Rochester (Geoffrey Kaeuper of Counsel), for Respondent.

PRESENT: SMITH, J.P., PERADOTTO, CARNI, LINDLEY, AND SCONIERS, JJ.MEMORANDUM:

Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, six counts of robbery in the first degree (Penal Law § 160.15[4] ) arising from two separate gunpoint robberies. Contrary to defendant's contention, Supreme Court properly refused “to suppress the in-court identification of [the] victim who had viewed defendant's photograph in the newspaper ... or to require the People to establish that [such] victim[ ] had an independent basis for [his] identification[ ]” ( People v. Fontanez, 278 A.D.2d 933, 934, 718 N.Y.S.2d 541, lv. denied 96 N.Y.2d 862, 730 N.Y.S.2d 36, 754 N.E.2d 1119; see People v. Stevens, 44 A.D.3d 882, 843 N.Y.S.2d 446; People v. Fuller, 185 A.D.2d 446, 449, 586 N.Y.S.2d 366, lv. denied 80 N.Y.2d 974, 591 N.Y.S.2d 144, 605 N.E.2d 880, 81 N.Y.2d 788, 594 N.Y.S.2d 735, 610 N.E.2d 408). We reject the contention of defendant that the in-court identification was tainted because the lineup in which the victim in question identified defendant was conducted after that victim had viewed a photo array. “Multiple pretrial identification procedures are not inherently suggestive ..., and the record supports the court's determination that the photo array and subsequent lineup ‘were not so suggestive as to create the substantial likelihood that defendant would be misidentified’ ” ( People v. Johnson, 52 A.D.3d 1286, 1286, 859 N.Y.S.2d 539, lv. denied 11 N.Y.3d 738, 864 N.Y.S.2d 396, 894 N.E.2d 660; see People v. Brown, 254 A.D.2d 781, 782, 680 N.Y.S.2d 328, lv. denied 92 N.Y.2d 1029, 684 N.Y.S.2d 494, 707 N.E.2d 449). Contrary to defendant's contention, the comments of the police investigator, including her “comment to the [victim in question] that [she] believed that the police had arrested the same individual [he] had selected from the photo[ ] array did not render the lineup unduly suggestive ... [inasmuch as] there was no suggestion as to which of the lineup participants was that individual” ( People v. Simmonds, 182 A.D.2d 650, 651–652, 582 N.Y.S.2d 236, lv. denied 80 N.Y.2d 910, 588 N.Y.S.2d 835, 602 N.E.2d 243; see People v. Goodman, 167 A.D.2d 352, 561 N.Y.S.2d 309, lv. denied 77 N.Y.2d 878, 568 N.Y.S.2d 921, 571 N.E.2d 91). Further, we conclude that “[t]he prosecutor's reference to the prior photo identification was ill-advised, but [it] was not tantamount to coaching the [victim] to make a particular selection at the lineup” ( People v. Coble, 168 A.D.2d 981, 982, 564 N.Y.S.2d 927, lv. denied 78 N.Y.2d 954, 573 N.Y.S.2d 649, 578 N.E.2d 447; see generally People v. Wongshing, 245 A.D.2d 186, 666 N.Y.S.2d 166, lv. denied 91 N.Y.2d 978, 672 N.Y.S.2d 858, 695 N.E.2d 727). We have considered defendant's remaining contentions concerning suppression of the identification testimony and conclude that they are without merit.

Defendant further contends that he was deprived of a fair trial based on the court's denial of his request for funding in excess of the $1,000 statutory limit to retain an expert with respect to identification issues ( see County Law § 722–c). Even assuming, arguendo, that the court erred in denying that request, we conclude that defendant was not thereby deprived of a fair trial because this “is not a ‘case [that] turns on the accuracy of eyewitness identifications [where] there is little or no corroborating evidence connecting the defendant to the crime’ ” ( People v. Abney, 13 N.Y.3d 251, 269, 889 N.Y.S.2d 890, 918 N.E.2d 486; see People v. Lee, 96 N.Y.2d 157, 162–163, 726 N.Y.S.2d 361, 750 N.E.2d 63). Indeed, “the corroboration was strong enough for the ... court reasonably to conclude that the expert's testimony would be of minor importance” ( People v. Young, 7 N.Y.3d 40, 45, 817 N.Y.S.2d 576, 850 N.E.2d 623).

We reject the contention of defendant that the court abused its discretion in denying his request for an adjournment of the trial based on the People's belated delivery of records related to DNA evidence and his inability to retain an expert concerning the issue of identification. Although defendant is correct that the court's discretion with respect to a request for an adjournment is more...