People v. Phillips — 145 A.D.2d 656

Majority

p. 656

The People of the State of New York, Respondent, v Nelson Phillips, Appellant.

— Appeal by the defendant from a judgment of the Supreme Court, Queens County (Chetta, J.), rendered May 30, 1986, convicting him of robbery in the second degree (two counts), criminal possession of stolen property in the first degree, criminal mischief in the fourth degree and unauthorized use of a vehicle in the third degree, after a nonjury trial, 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 lineup procedure employed was proper and not "so unnecessarily suggestive and conducive to irreparable mistaken identification that [the defendant] was denied due process of law” (Stovall v Denno, 388 US 293 , 302). The defendant’s argument that the lineup was rendered unnecessarily suggestive by the injuries to his face is without merit (see,

p. 657

People v Williams, 118 AD2d 610 ). All of the other participants in the lineup were approximately the same age, height, weight and build as the defendant and had similar skin tones and hairstyles (see, People v Cunningham, 110 AD2d 708 , 709). Under the circumstances, the hearing court properly determined that the lineup and the in-court identification of the defendant by the complainant were admissible (People v Gairy, 116 AD2d 733 ). Thompson, J. P., Rubin, Spatt and Balletta, JJ., concur.

Cases cited

Stovall v. Denno 388 US 293 SCOTUS 1967-06-12 at 302 p. 656
People v. Williams 118 AD2d 610 N.Y. App. Div. 1986-03-03 p. 657
People v. Cunningham 110 AD2d 708 N.Y. App. Div. 1985-04-08 at 709 p. 657
People v. Gairy 116 AD2d 733 N.Y. App. Div. 1986-01-27 p. 657