People v. Rivera

• Decision Date: 18 October 1999
• Citation: 697 N.Y.S.2d 632,265 A.D.2d 509
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent,<BR>v.<BR>ELMER RIVERA, Appellant.
• Court: New York Supreme Court — Appellate Division

265 A.D.2d 509

697 N.Y.S.2d 632

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v.ELMER RIVERA, Appellant.

Decided October 18, 1999.

Santucci, J. P., Joy, Friedmann and Goldstein, JJ., concur.

Ordered that the judgment is affirmed.

The defendant claims that the lineup viewed by two prosecution witnesses one month after the shooting was unduly suggestive because the defendant and one filler were the only people in the lineup wearing the clothes described by the witnesses as having been worn by the shooter, i.e., a white T-shirt and jeans. The hearing court properly denied the suppression motion since the defendant's clothing was not so distinctive as to draw attention to him, and the appearance of the fillers was similar to the defendant in terms of skin tone and facial hair, and all of the participants were wearing white T-shirts (see, People v Allen, 257 AD2d 397; People v Caba, 255 AD2d 232). Moreover, three weeks prior to the lineup, the witnesses had selected a photograph of the defendant's face from an array of six photographs of similar-looking men, thus revealing that the witnesses concentrated on the shooter's face rather than his commonplace attire (see, People v Santos, 250 AD2d 413; People v Tinnen, 238 AD2d 615).

The defendant's remaining contentions are unpreserved for appellate review and, in any event, without merit.