People v. Robert

• Decision Date: 08 June 1992
• Parties: The PEOPLE, etc., Respondent, v. Evans ROBERT, a/k/a Robert Charlie Evans, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 445

585 N.Y.S.2d 445

184 A.D.2d 597

The PEOPLE, etc., Respondent, v. Evans ROBERT, a/k/a Robert Charlie Evans, Appellant.

Supreme Court, Appellate Division,

Second Department.

June 8, 1992.

Raphael F. Scotto, New York City, for appellant.

Charles J. Hynes, Dist. Atty., Brooklyn (Jay M. Cohen, Seth M. Lieberman, and Ross Rhodes, of counsel), for respondent.

Before HARWOOD, J.P., and ROSENBLATT, RITTER and PIZZUTO, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Lombardo, J.), rendered July 11, 1988, convicting him of murder in the second degree (two counts), criminal possession of a weapon in the second degree, and criminal possession of a weapon 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 identification testimony.

ORDERED that the judgment is affirmed.

The defendant argues that both the lineup and in-court identification should have been suppressed. He contends that the lineup identification by a witness was tainted by a suggestive photographic array. Specifically, he claims that the darker, "almost black" background in his photograph, made it stand out from the others.

A photographic display is suggestive where some characteristic of one picture draws the viewer's attention to it, indicating that the police have made a particular selection (see, People v. Cherry, 150 A.D.2d 475, 541 N.Y.S.2d 78; People v. Dubois, 140 A.D.2d 619, 622, 528 N.Y.S.2d 660; People v. Shea, 54 A.D.2d 722, 387 N.Y.S.2d 477; People v. Emmons, 123 A.D.2d 475, 476, 506 N.Y.S.2d 485). An examination of the six-picture array employed in this case demonstrates that it was not suggestive. Although it may have been better practice to have taken the defendant's picture against a lighter background, it cannot be said that this difference tainted the photographic array. The defendant's appearance and pose did not differ greatly from those of the men in the other photographs. Each man, including the defendant, was close in age, had a similar hairstyle (a short afro), skin tone, and facial characteristics (see, People v. Floyd, 173 A.D.2d 211, 569 N.Y.S.2d 92; People v. Emmons, supra, 123 A.D.2d at 476, 506 N.Y.S.2d 485; Matter of Christopher E., 163 A.D.2d 385, 558 N.Y.S.2d 567).

Moreover, even if the photographic identification had been suggestive, it would not have tainted the subsequent lineup identification. Significantly, the lineup was held approximately 19 months thereafter and was thus sufficiently attenuated in time to nullify any possible taint (see, People v. Sutherland, 157 A.D.2d 681, 549 N.Y.S.2d 781; People v. Hernandez, 143 A.D.2d 842, 533 N.Y.S.2d 488; People v. Dubois, supra, 140 A.D.2d at 622, 528 N.Y.S.2d 660; People v. Smith, 140 A.D.2d 647, 528 N.Y.S.2d 872).

The defendant also argues that evidence of the lineup identification should have been suppressed because differences with respect to the height of the six lineup participants rendered the procedure unduly suggestive. While it is well established that the participants in a lineup should have the same general physical characteristics (see, People v. Burns, 138 A.D.2d 614, 615, 526 N.Y.S.2d 199), there is no requirement that a defendant in a lineup be surrounded by...