People v. Montgomery — 88 N.Y.2d 1041

Majority

p. 1041

[673 NE2d 917, 650 NYS2d 632]

The People of the State of New York, Respondent, v Alashia Montgomery, Appellant.

Argued September 12, 1996;

decided October 17, 1996

p. 1042

APPEARANCES OF COUNSEL

Lawrence Mark Stern, New York City, and Jesse Berman for appellant.

Robert M. Morgenthau, District Attorney of New York County, New York City (Alan Gadlin and Mark Dwyer of counsel), for respondent.

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The People conceded at a Wade hearing that five fillers who were significantly older than the 15-year-old defendant were placed in a lineup with defendant and that the lineup report falsely stated that the fillers were teenagers when their ages actually ranged from 28 to 42. After a Wade hearing, the court determined that the lineup was tainted by undue suggestion and suppressed the lineup identifications emanating therefrom. Citing this Court’s decision in People v Isaacson ( 44 NY2d 511 ), defendant contends that reversal of her conviction for second degree murder is warranted because, in addition to suppressing the lineup identifications, the trial court should have imposed a sanction on the People for their misconduct by either dismissing the indictment or suppressing the in-court identifications of defendant made by witnesses who had viewed the tainted lineup.

p. 1043

The transcripts of the pretrial Wade hearing, the trial court’s written Wade decision and other materials in the record reveal that the court and counsel agreed that the Wade hearing was limited to a determination of the issues of suggestiveness and independent source, that the Isaacson claim was beyond the scope of the Wade proceeding and that defendant should raise any prosecutorial misconduct claim by a future Clayton motion (see, People v Clayton, 41 AD2d 204 ). While defense counsel did claim at the Wade hearing that certain in-court identifications should have been suppressed, that claim was predicated on the different ground that they were tainted by the unduly suggestive lineup and were not derived from an independent source — an issue properly resolved at the Wade hearing. The record supports the determinations of both the suppression court and the Appellate Division that independent sources served as the predicate for those in-court identifications, rendering that issue beyond this Court’s further review.

The record does not establish that the defense ever made a subsequent Clayton motion or in any way sought to litigate the separate question of an appropriate sanction for the People’s misconduct at any other time. Accordingly, that claim is unpreserved for our review.

Defendant’s remaining claims lack merit.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.

Order affirmed in a memorandum.

Cases cited

People v. Clayton 41 AD2d 204 N.Y. App. Div. 1973-04-02 p. 1043