People v. Singleton

• Decision Date: 29 December 1995
• Citation: 636 N.Y.S.2d 796,222 A.D.2d 719
• Parties: The PEOPLE, etc., Respondent, v. Lonnie SINGLETON, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 796

636 N.Y.S.2d 796

222 A.D.2d 719

The PEOPLE, etc., Respondent, v. Lonnie SINGLETON, Appellant.

Supreme Court, Appellate Division,

Second Department.

Dec. 29, 1995.

Howard R. Teichner, Plainview, for appellant.

Richard A. Brown, District Attorney, Kew Gardens (Steven J. Chananie, Linda Cantoni, and Emil Bricker, of counsel), for respondent.

Before SULLIVAN, J.P., and BALLETTA, MILLER and O'BRIEN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from (1) a judgment of the Supreme Court, Queens County (Sherman, J.), rendered May 5, 1993, convicting him of robbery in the first degree and robbery in the second degree under Indictment No. 7757/91, upon a jury verdict, and imposing sentence, and (2) five judgments of the same court, all rendered May 27, 1993, convicting him of robbery in the first degree under Indictment No. 7758/91, robbery in the first degree under Indictment No. 7759/91, robbery in the first degree under Indictment No. 352/92, robbery in the first degree under Indictment No. 1751/92, and murder in the second degree under Indictment No. 694/92, upon his pleas of guilty, and imposing sentences. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion made under Indictment No. 7757/91 which was to suppress identification testimony.

ORDERED that the judgments are affirmed.

The defendant's contention under Indictment No. 7757/91 that the pretrial identification procedures were unduly suggestive is without merit. Where, as here, "[a]n examination of the hearing testimony reveals that the lineup stand-ins were all similar to the defendant in terms of ethnic background, height, weight and age", a pretrial lineup will be found not to be unduly suggestive (People v. Diaz, 138 A.D.2d 728, 526 N.Y.S.2d 540). There is no requirement that a defendant in a lineup be accompanied by individuals nearly identical in appearance (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. Baptiste, 201 A.D.2d 659, 660, 608 N.Y.S.2d 266; People v. Hamilton, 186 A.D.2d 581, 582, 588 N.Y.S.2d 379; People v. Rotunno, 159 A.D.2d 601, 552 N.Y.S.2d 445). Moreover, the record amply supports the hearing court's conclusion that the defendant did not prove that the police procedures employed in this case were impermissibly suggestive (see, People v. Stephens, 143 A.D.2d 692, 695, 532 N.Y.S.2d 928).

Further, the defendant's claim that the trial court erred in allowing a police officer to testify that he arrested the defendant after a conversation with a codefendant who did not testify at trial is unpreserved for appellate review (see, CPL 470.05[2]; People v. Valverde, 216 A.D.2d 339, 627 N.Y.S.2d 992; People v. Anthony, 179 A.D.2d 765, 579 N.Y.S.2d 1011; People v. Caldwell, 147 A.D.2d 581, 537 N.Y.S.2d 874; People v. Dubois, 137 A.D.2d 706, 524 N.Y.S.2d 795; People v. Cummings, 109 A.D.2d 748, 485 N.Y.S.2d 847). In any event, any error was harmless in view of the overwhelming evidence of the defendant's guilt, including the strong identification testimony by the two victims (see, People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787; People v. Valverde, supra; People v. Anthony, supra ).

Finally, the trial court did not improvidently exercise its discretion by denying the defendant's motion to withdraw his pleas of guilty under Indictment Nos. 7758/91, 7759/91, 352/92, 1751/92 and 694/92 (see, CPL 220.60[3]; People v. Frederick, 45 N.Y.2d 520, 410 N.Y.S.2d 555, 382 N.E.2d 1332; People v. Tinsley, 35 N.Y.2d 926, 365 N.Y.S.2d 161, 324 N.E.2d 544; People v. Ortiz, 216 A.D.2d 495, 628 N.Y.S.2d 559; People...