People v. Waters

• Decision Date: 26 July 1993
• Citation: 600 N.Y.S.2d 746,195 A.D.2d 613
• Parties: The PEOPLE, etc., Respondent, v. Sami WATERS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 746

600 N.Y.S.2d 746

195 A.D.2d 613

The PEOPLE, etc., Respondent, v. Sami WATERS, Appellant.

Supreme Court, Appellate Division Second Department.

July 26, 1993.

Michael Warren, Brooklyn, for appellant.

Charles J. Hynes, Dist. Atty., Brooklyn (Roseann B. MacKechnie, Sholom J. Twersky, and Migdalia Castillo, of counsel), for respondent.

Before MANGANO, P.J., and THOMPSON, PIZZUTO and JOY, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Hall, J.), rendered November 19, 1991, convicting him of robbery in the first degree, burglary in the first degree, grand larceny in the third degree and grand larceny in the fourth degree (two counts), 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.

We find no merit to the defendant's contention that his lineup was unduly suggestive because the hats worn by the other five participants were too dissimilar to his own cap. There is no requirement that the defendant be surrounded 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). We have examined the photographs of the lineup and conclude that the variation in the headgear of the participants, who had the same general physical characteristics, did not create a substantial risk of misidentification (see, Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401; People v. Adams, 53 N.Y.2d 241, 440 N.Y.S.2d 902, 423 N.E.2d 379).

We also find that the court marshaled the evidence in an even-handed manner and did not give undue emphasis to the People's evidence or theories (see, People v. Saunders, 64 N.Y.2d 665, 485 N.Y.S.2d 250, 474 N.E.2d 610; People v. Culhane, 45 N.Y.2d 757, 408 N.Y.S.2d 489, 380 N.E.2d 315, cert. denied, 439 U.S. 1047, 99 S.Ct. 723, 58 L.Ed.2d 706). The court summarized the testimony of the alibi witnesses and explained the defense theory of misidentification. Moreover, the court instructed the jury to carefully evaluate the complainant's credibility and assess her opportunity to observe the defendant during the crime. No reversible error took place when the court failed to refer to the testimony of two police officers called by the defense for the purpose of...