People v. Smith

• Decision Date: 23 May 1988
• Citation: 140 A.D.2d 647,528 N.Y.S.2d 872
• Parties: The PEOPLE, etc., Respondent, v. Ronald SMITH, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 872

528 N.Y.S.2d 872

140 A.D.2d 647

The PEOPLE, etc., Respondent, v. Ronald SMITH, Appellant.

Supreme Court, Appellate Division Second Department.

May 23, 1988.

Matthew Muraskin, Hempstead (Kent V. Moston and Stephanie M. Carvlin, of counsel), for appellant.

Denis Dillon, Dist. Atty., Mineola (Anthony J. Girese and John F. McGlynn, of counsel), for respondent.

Before BRACKEN, J.P., and BROWN, WEINSTEIN and RUBIN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the County Court, Nassau County (Belfi, J.), rendered June 26, 1985, convicting him of robbery in the first 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's claim that a detective's statement to the complainant that a photograph of the defendant would be included in the photopack compromised the validity of the identification and, consequently, tainted the lineup identification, is without merit. It is well settled that an identification is not automatically contaminated by an officer's remark that a subject is in custody ( People v. Rodriguez, 64 N.Y.2d 738, 740, 485 N.Y.S.2d 976, 475 N.E.2d 443; People v. Logan, 25 N.Y.2d 184, 192, 303 N.Y.S.2d 353, 250 N.E.2d 454, cert. denied 396 U.S. 1020, 90 S.Ct. 592, 24 L.Ed.2d 513). Similarly, advising a witness that the photo of a particular individual who was a suspect and whose name and face the witness had not yet had the occasion to connect, would be included in a photo array, is not fatal to the propriety of the procedure. Moreover, even if the photo identification had been suggestive it would not have tainted the subsequent lineup identification. Significantly, the lineup was held approximately two months thereafter and was thus sufficiently attenuated in time to nullify any possible taint ( see, People v. Watts, 130 A.D.2d 695, 696, 515 N.Y.S.2d 619, lv. denied 70 N.Y.2d 718, --- N.Y.S.2d ----, 513 N.E.2d 1322; People v. Ruffino, 110 A.D.2d 198, 201, 494 N.Y.S.2d 8). Further, the officer's statement to the complainant that Ronald Smith would appear in the lineup did not diminish the validity of the identification. That the complainant knew the defendant, whose photo had been included in the array, would be in the lineup did not necessarily imply to him that he had chosen the "right man" from the photos displayed to him and did not present a serious risk of influencing the witness's identification of the defendant from the lineup ( see, People v. Rodriguez, supra, 64 N.Y.2d at 740-741, 485 N.Y.S.2d 976, 475 N.E.2d 443; People v. Reddy, 124 A.D.2d 835, 836, 508 N.Y.S.2d 554; People v. Wilson, 111 A.D.2d 940, 491 N.Y.S.2d 49; People v. Jerome, 111 A.D.2d 874, 490 N.Y.S.2d 790, lv. denied 66 N.Y.2d 764, 497 N.Y.S.2d 1038, 488 N.E.2d 124).

Nor were the identification procedures rendered unduly suggestive by virtue of the groups of photographs and...