| People v Stanley |
| 2009 NY Slip Op 08944 [68 AD3d 422] |
| December 3, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Koren Stanley, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Sheryl Feldman of counsel), forrespondent.
Judgment, Supreme Court, New York County (Bruce Allen, J., at suppression hearing;Gregory Carro, J., at jury trial and sentence), rendered March 3, 2008, convicting defendant ofmurder in the second degree (two counts), attempted murder in the second degree and criminalpossession of a weapon in the second degree, and sentencing him to an aggregate term of 50years to life, unanimously affirmed.
The court properly denied defendant's motion to suppress identification testimony. Afteridentifying defendant at an otherwise fair lineup, a witness told a detective that defendant waswearing clothing taken during the crime. The witness had never given a description of theassailant that included clothing, or described the clothing that had been taken, and when thepolice arrested defendant more than a week after the crime they were unaware that the clothes hewas wearing had any significance. Accordingly, we conclude that the lineup was not undulysuggestive (see People v Carroll, 303 AD2d 200 [2003], lv denied 100 NY2d560 [2003]). Moreover, the witness knew defendant by his nickname, and had identified himfrom a proper photo array two days before the lineup. To the extent that an identificationprocedure may be unconstitutionally suggestive even when the suggestiveness is the product ofpure happenstance (see Raheem v Kelly, 257 F3d 122, 137 [2d Cir 2001], certdenied 534 US 1118 [2002]), we find that this identification was sufficiently reliable. In anyevent, we conclude that any error in the admission of this witness's lineup or in-courtidentifications was harmless in view of the [*2]overwhelmingevidence of defendant's guilt (see People v Crimmins, 36 NY2d 230 [1975]).
We perceive no basis for reducing the sentence. Concur—Gonzalez, P.J., Tom,Andrias, Nardelli and Richter, JJ.