| People v Cruz |
| 2008 NY Slip Op 07749 [55 AD3d 365] |
| October 14, 2008 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Nelson Cruz, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Sylvia Wertheimer of counsel), forrespondent.
Judgment, Supreme Court, New York County (Jeffrey M. Atlas, J., at suppression hearing;Bruce Allen, J., at jury trial and sentence), rendered June 17, 2005, convicting defendant ofmurder in the second degree and criminal possession of a weapon in the second degree, andsentencing him to an aggregate term of 25 years to life, unanimously affirmed.
The court properly denied defendant's motion to suppress the identification testimony of aneyewitness. The witness's lineup identification was not unduly suggestive. The record supportsthe court's factual determination (see People v Prochilo, 41 NY2d 759, 761 [1977]) that adetective did not tell the witness that the lineup would include the suspected perpetrator. In anyevent, such information would not have rendered the lineup unduly suggestive (see People vRodriguez, 64 NY2d 738, 740-741 [1984]). Further, suppression was not warranted by thefacts that the witness had described the assailant as wearing a blue T-shirt, and defendant was theonly person in the lineup wearing such a shirt. The shirt was a common article of clothing(see People v Santos, 250 AD2d 413, 414 [1998], lv denied 92 NY2d 905 [1998],cert denied 525 US 1076 [1999]), and the lineup occurred more than a month after thecrime, so that the passage of time would have reduced the significance of any similarity betweenthe attire of a lineup participant and that of the described suspect. In addition, the witnesscredibly testified at the hearing that the shirt did not affect her identification.
The court properly admitted evidence concerning the drug-trafficking relationship betweendefendant and the victim, which was highly probative of motive and identity, and providedcontext for other evidence. Furthermore, the People established a sufficient link between theillicit relationship and the murder. A witness testified that at the time of the crime the victim anddefendant were engaged in an argument, and the jury could draw a reasonable inference that theargument was about drugs (see People v Mena, 269 AD2d 147 [2000], lv denied95 NY2d 800 [2000]). The probative value of the evidence of uncharged crimes outweighed itsprejudicial effect, which the court minimized by way of a limiting instruction.
To the extent that the court erred in admitting testimony that the District Attorney's Officehelped a witness to relocate, the error was harmless in light of the overwhelming evidence [*2]of defendant's guilt, which included the testimony of multipleidentifying witnesses. Concur—Mazzarelli, J.P., Friedman, Nardelli, Williams andFreedman, JJ.