| People v Kenley |
| 2011 NY Slip Op 06331 [87 AD3d 518] |
| August 25, 2011 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v EricKenley, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Allen J. Vickey of counsel), forrespondent.
Judgment, Supreme Court, New York County (A. Kirke Bartley, J.), rendered July 30, 2008,convicting defendant, after a jury trial, of robbery in the first degree (two counts), robbery in thesecond degree and attempted robbery in the first degree, and sentencing him, as a second violentfelony offender, to an aggregate term of 15 years, unanimously reversed, on the law, defendant'smotion to suppress lineup identifications made by the witnesses to the two alleged robberiesgranted, and the matter remanded for a new trial preceded by an independent source hearingregarding those witnesses.
A defendant is not entitled to a lineup in which the fillers are "nearly identical" to him(People v Chipp, 75 NY2d 327, 336 [1990], cert denied 498 US 833 [1990]).However, a lineup is unduly suggestive when only the defendant matches a key aspect of thedescription of the perpetrator provided by a witness or witnesses (see Foster v California,394 US 440, 441-443 [1969]; People v Owens, 74 NY2d 677, 678 [1989]).
Defendant was charged with two robberies that occurred on the same morning. The witnessesto the robberies described the driver of the getaway car, respectively, as "a huge, big, fat, blackguy," "a real big, real huge black guy," and "very heavy-set [and] large."
A review of the lineup photograph reveals that defendant, who weighed 400 pounds, was theonly participant who fits these descriptions. Although the fillers were large men, there was a verynoticeable weight difference between defendant and the fillers. While the lineup participantswere seated, and this can sometimes satisfactorily minimize differences in weight, it is clear fromthe photo that there was a marked difference between defendant and the fillers.
We do not mean to suggest that the police are obligated to find grossly overweight fillerswhen dealing with the situation presented here, and we recognize the practical difficulties thatwould be involved in doing so. Instead, this situation would call for the use of some kind ofcovering to conceal the weight difference (see e.g. People v Murphy, 1 AD3d 184 [2003], lv denied 4NY3d 801 [2005]).
There is a reasonable possibility that the tainted testimony of the witnesses to the firstrobbery contributed to defendant's conviction of the second. Therefore, a new trial is required asto the second robbery as well. Concur—Mazzarelli, J.P., Sweeny, Freedman,Manzanet-Daniels and RomÁn, JJ.