| People v Perkins |
| 2009 NY Slip Op 03017 [61 AD3d 780] |
| April 14, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Nayshawn Perkins, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Victor Barall ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Feldman,J.), rendered June 14, 2005, convicting him of attempted murder in the second degree androbbery in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up forreview the denial, after a hearing (J. Goldberg, J.), of that branch of the defendant's omnibusmotion which was to suppress identification testimony.
Ordered that the judgment is affirmed.
On the day the defendant was arrested for the crimes charged in this case, some three monthsafter they were committed, the police sought to conduct a lineup, but the defendant refused toparticipate. The police then photographed the defendant and showed the complainant a "lineup"with that photograph and the photographs of the men who had been chosen to participate in thelineup. One of the victims identified the photograph of the defendant as that of the shooter. Ninemonths after the crimes were committed, the defendant participated in a corporeal lineup, atwhich the same victim identified him. Testimony regarding both identifications was admitted attrial. We reject the defendant's contention that admission of evidence of the photographic"lineup" was error.
In general, evidence regarding pretrial photographic identifications is not admissible at trial(see People v Grajales, 8 NY3d861, 862 [2007]; People v Cioffi, 1 NY2d 70, 73 [1956]; People v Caserta,19 NY2d 18, 21 [1966]). This general prohibition is based in large part on the inference ajury may draw that possession by the police of the defendant's photograph was the result of priorarrests (see People v Johnson, 100 AD2d 134, 139 [1984]). Here, however, it was thedefendant himself, who, by his refusal [*2]to participate in thelineup, made resort to the photographic identification necessary. A person lawfully in policecustody has no right to refuse to participate in a lineup (see People v Whitaker, 64 NY2d347, 351 [1985]). It would thus be inappropriate to allow the defendant's refusal to participate ina lineup to give rise to an inference by the jury that the identification testimony was suspectbecause the defendant was not identified in a lineup until nine months after the crime.Significantly, the jury was made aware that the defendant's photograph was taken on the day ofthe photographic "lineup" and was not in the possession of the police by reason of a previousarrest (cf. People v Johnson, 100 AD2d at 139). Under the circumstances here, therefore,it was not improper to admit evidence of the photographic "lineup."
The defendant's remaining evidentiary contentions are unpreserved for appellate review(see CPL 470.05 [2]) and, in any event, any errors were harmless (see People vCrimmins, 36 NY2d 230, 237, 242 [1975]; People v Moore, 49 AD3d 901, 902 [2008]).
The defendant's trial attorney provided meaningful representation (see People vBenevento, 91 NY2d 708, 712-714 [1998]; People v Baldi, 54 NY2d 137, 147[1981]). Spolzino, J.P., Fisher, Miller and Balkin, JJ., concur.