People v. Rosado

• Decision Date: 18 December 1995
• Citation: 222 A.D.2d 617,635 N.Y.S.2d 286
• Parties: The PEOPLE, etc., Respondent, v. Luis ROSADO, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 286

635 N.Y.S.2d 286

222 A.D.2d 617

The PEOPLE, etc., Respondent, v. Luis ROSADO, Appellant.

Supreme Court, Appellate Division Second Department.

Dec. 18, 1995.

Daniel L. Greenberg, New York City (Jeffrey Dellheim and Mitchell J. Briskey, of counsel), for appellant.

Charles J. Hynes, District Attorney, Brooklyn (Roseann B. MacKechnie and Thomas S. Burka, of counsel), for respondent.

Before JOY, J.P., and HART, GOLDSTEIN and FLORIO, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from four judgments of the Supreme Court, Kings County (Firetog, J.), all rendered December 22, 1993, convicting him of robbery in the first degree (three counts; one as to each of Indictment Nos. 457/93, 703/93, and 6152/93) and criminal sale of a controlled substance in the third degree under Indictment No. 5048/93, upon his pleas of guilty, and imposing sentences. The appeal under Indictment No. 457/93 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 judgments are affirmed.

Indictment No. 457/93 arose out of an incident which occurred on January 8, 1993, at which time the defendant displayed a gun and stole money from a cash register. Two butchers from the rear of the store responded to the cashier's screams and chased the defendant out of the store. The defendant fell to the ground and the two men jumped on top of him and continued to punch him until the police arrived and broke up the fight.

The defendant was arrested, taken to the stationhouse, and then to a hospital. Upon his return to the stationhouse, the defendant was presented in a lineup where three victims from robberies which had occurred prior to the robbery of January 8, 1993, identified him as the perpetrator of those prior robberies. Thereafter, the defendant signed separate confessions admitting to the January 8th robbery, as well as to three other crimes.

We find unpersuasive the defendant's contention that the hearing court erred in refusing to direct the People to produce a police officer, his personnel file, and the two complainants who chased the defendant from the store, as additional witnesses at his pretrial suppression hearing. The defendant's request for the production of a police officer and his personnel file was not supported by a "bona fide factual predicate which demonstrated that such officers possessed material evidence on the question" of whether the challenged evidence was lawfully obtained (People v. Witherspoon, 66 N.Y.2d 973, 974, 498 N.Y.S.2d 789, 489 N.E.2d 758). While the People have the initial burden of demonstrating that no improper police conduct occurred in obtaining the evidence sought to be suppressed, they are not required to produce each and every police officer with knowledge of the criminal incident and surrounding circumstances (see, People v. Witherspoon, supra; People v. Hucks, 175 A.D.2d 213, 572 N.Y.S.2d 352).

Moreover, the defendant has failed to produce any evidence indicating that his confessions resulted from illegal police conduct or procedures so as to warrant the production of the two complaining witnesses from the January 8th incident. Accordingly, we find that the hearing court did not improvidently exercise its discretion in denying the defendant's request to call additional witnesses or to subpoena police personnel files at the suppression hearing (see, People v. Chipp, 75 N.Y.2d 327, 553 N.Y.S.2d 72, 552 N.E.2d 608, cert. denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70; People v. Gissendanner, 48 N.Y.2d 543, 423 N.Y.S.2d 893, 399 N.E.2d 924; People v. Bailey, 179 A.D.2d 662, 579 N.Y.S.2d 106; People v. Hucks, 175 A.D.2d 213, 572 N.Y.S.2d 352).

We further find, upon our review of the lineup photographs, that contrary to the defendant's contentions, the lineup was not unduly suggestive. The individual fillers and the defendant were sufficiently similar in age, weight, build, hairstyle, and skin tone (see, People v. Phillips, 145 A.D.2d 656, 536 N.Y.S.2d 171). In addition, the record reveals that pursuant to the hearing testimony of the witnesses who viewed the lineup, the viewers did not rely on the fact that defendant appeared to have been beaten to identify him, nor did the fact that the defendant was the only person with facial injuries in the lineup serve to draw their attention to the defendant (see, People v. Brathwaite, 163 A.D.2d 402, 558 N.Y.S.2d 125; People v. Williams, 118 A.D.2d 610, 499 N.Y.S.2d 453).

Finally, the...