People v. Tweedy
| Decision Date | 16 November 1987 |
| Citation | 134 A.D.2d 467,521 N.Y.S.2d 92 |
| Parties | The PEOPLE, etc., Respondent, v. Floyd TWEEDY, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Carol Kahn, White Plains, for appellant.
Carl A. Vergari, Dist. Atty., White Plains (Joseph M. Latino and Anthony J. Servino, of counsel), for respondent.
Before MOLLEN, P.J., and BROWN, RUBIN and SPATT, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Martin, J.), rendered May 6, 1985, convicting him of rape in the first degree, sodomy in the first degree, sexual abuse in the first degree and assault in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial (Ritter, J.), after a hearing, of that branch of the defendant's omnibus motion which was to suppress identification testimony.
ORDERED that the judgment is affirmed.
Contrary to the defendant's present contention, "[t]here is no automatic rule which requires that a complaining witness testify at a Wade hearing" (People v. Brown, 111 A.D.2d 928, 929, 491 N.Y.S.2d 38). As our previous decisions have held, it is only when the defense has established that a pretrial identification procedure was unduly suggestive, after the prosecution had met its initial burden of going forward to demonstrate reasonableness and the lack of suggestiveness, that evidence concerning an independent source for the in-court identification must be elicited from the complainant (see, People v. Jones, 112 A.D.2d 952, 492 N.Y.S.2d 467, lv. denied 66 N.Y.2d 615, 494 N.Y.S.2d 1038, 485 N.E.2d 242; People v. Jackson, 108 A.D.2d 757, 484 N.Y.S.2d 913; see also, People v. Sutton, 47 A.D.2d 455, 366 N.Y.S.2d 500). In this case, the prosecution satisfied its initial burden both by demonstrating that the defendant's picture was inserted in a photographic array after an eyewitness familiar with the defendant named him as a participant in the crimes and by establishing that the array contained pictures of individuals who were similar in appearance to the defendant. The defendant's assertion that his photograph should not have been used because he did not precisely match the complainant's description of either of her attackers does not indicate that the identification procedure was in any way suggestive. Hence, the hearing court committed no error in denying a request by the defense that the complainant be called as a witness so that the issue of whether...
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