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People v. Rodriquez

137 A.D.2d 847 Court N.Y. App. Div. Decision date 1988-02-29 English

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p. 847
The People of the State of New York, Respondent, v George Rodriquez, Appellant.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Tomei, J.), rendered May 7, 1986, convicting him of attempted robbery in the first degree and attempted assault 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 certain identification testimony.

Ordered that the judgment is affirmed.

We agree with the hearing court that the identification of the defendant by the witness Vicente had a source independent of the suggestive photo array (see, People v Ballott, 20 NY2d 600 , 606-607). The evidence at the hearing demonstrated that the area in which the crime took place was well illuminated, and that the witness had a clear and unobstructed view of the defendant’s face for a period of 40 to 60 seconds both prior to and during the incident. There is no evidence, moreover, that his attention was focused elsewhere during this time (cf., People v Boyce, 89 AD2d 623 , 624). The findings of the hearing court are thus amply supported by the record, and we decline to disturb its determination (see, People

p. 848
v Bradley, 129 AD2d 720 , lv denied 69 NY2d 1001 ). We further conclude, under all of the circumstances, that the lineup procedure was not unduly suggestive, and that there was therefore no basis upon which to suppress the identification testimony of the witness Lee (see, Manson v Brathwaite, 432 US 98 , 114). We note, in this regard, that there is no evidence that the police influenced Lee in her selection of the defendant from the lineup, and that a number of the fillers possessed physical characteristics similar to those specified by the witness in her description of the defendant (see, People v Wong, 133 AD2d 184 , 185, lv denied 70 NY2d 878 ; People v Scott, 114 AD2d 915 , lv denied 67 NY2d 765 ; cf., People v Lebron, 46 AD2d 776 , 777-778). The defendant’s remaining contentions with respect to certain remarks made by the prosecutor during his summation are either unpreserved for appellate review or without merit. Kunzeman, J. P., Eiber, Harwood and Balletta, JJ., concur.

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