| People v Jackson |
| 2009 NY Slip Op 03455 [61 AD3d 620] |
| April 30, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Bryant Jackson, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Grace Vee of counsel), forrespondent.
Judgment, Supreme Court, New York County (Carol Berkman, J., on motions; Charles H.Solomon, J., at suppression hearing; William A. Wetzel, J., at jury trial and sentence), renderedDecember 18, 2006, convicting defendant of robbery in the first degree, and sentencing him, as apersistent violent felony offender, to a term of 20 years to life, unanimously affirmed.
The court properly denied defendant's suppression motion. The hearing evidence, includingthe lineup photographs, establishes that the lineup was not unduly suggestive (see People vChipp, 75 NY2d 327, 336 [1990], cert denied 498 US 833 [1990]). Because all ofthe lineup participants were seated, height differences were sufficiently minimized. The lineupwas not rendered suggestive by the fact that the victim described the robber as wearing a brownjacket or sweater, and defendant was the only lineup participant wearing a brown outer garment.This common article of clothing was not so distinctive as to unduly influence the identification(see People v Gilbert, 295 AD2d 275, 277 [2002], lv denied 99 NY2d 558[2002]), particularly since the passage of nearly two weeks between the crime and the lineupwould have reduced the significance of any similarity between an unremarkable garment wornby a lineup participant and one worn by the described suspect (see People v Cruz, 55AD3d 365 [2008], lv denied 11 NY3d 924 [2009]).
The hearing court properly precluded defendant from using a complaint report prepared by anontestifying officer to refresh the testifying officer's recollection of the victim's description ofthe robber's clothing, since the officer's recollection was clear and did not need to be refreshed(see People v Henry, 297 AD2d 585 [2002], lv denied 99 NY2d 559 [2002]). Inany event, there was no prejudice to defendant, because the court, as trier of fact, was madeaware of the contents of the report, and because the difference between the clothing descriptionsin the report and the officer's testimony was insignificant with regard to the issue ofsuggestiveness.
We have considered and rejected defendant's remaining argument. Concur—Gonzalez,P.J., Tom, Sweeny, Buckley and Acosta, JJ.