People v. Wedgeworth

• Decision Date: 13 December 1989
• Citation: 156 A.D.2d 529,548 N.Y.S.2d 790
• Parties: The PEOPLE, etc., Respondent, v. Eugene WEDGEWORTH, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 790

548 N.Y.S.2d 790

156 A.D.2d 529

The PEOPLE, etc., Respondent, v. Eugene WEDGEWORTH, Appellant.

Supreme Court, Appellate Division Second Department.

Dec. 13, 1989.

David Epstein, New York City, for appellant.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Tammy J. Smiley and Keith Dolan, of counsel), for respondent.

Before THOMPSON, J.P., and BRACKEN, RUBIN and SPATT, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Demakos, J.), rendered August 11, 1983, convicting him of robbery in the first degree (three counts), and assault in the second degree (three 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.

Viewing the evidence in the light most favorable to the People (see, People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to support the defendant's conviction. Moreover, upon the exercise of our factual review power, we find that the verdict was not against the weight of the evidence.

At the hearing the People failed to produce the photographic array which was used in one of the identification procedures challenged by the defendant. The failure of the People to preserve the photographic array gives rise to the inference that the array was suggestive. Further, this inference was not sufficiently rebutted in the record (see, People v. Scatliffe, 117 A.D.2d 827, 499 N.Y.S.2d 148; People v. Johnson, 106 A.D.2d 469, 482 N.Y.S.2d 563; cf., People v. Stokes, 139 A.D.2d 785, 527 N.Y.S.2d 529).

However, the lineup identifications of the defendant by the witnesses Enrique Garcia and Thomas Nerys, almost four months later, were sufficiently attenuated to remove them from any taint that the possibly suggestive photographic array might have had (see, People v. Smith, 140 A.D.2d 647, 528 N.Y.S.2d 872; People v. Watts, 130 A.D.2d 695, 515 N.Y.S.2d 619; People v. Ruffino, 110 A.D.2d 198, 494 N.Y.S.2d 8). While the witness Pedro Orta did not attend the lineup identification so that his pretrial identification remains tainted by the inference of suggestiveness, his in-court identification of the defendant was cumulative and constitutes harmless error (see, People v. Hamlin, 71 N.Y.2d 750, 530 N.Y.S.2d 74, 525 N.E.2d 719; ...