| People v Mathis |
| 2012 NY Slip Op 02438 [94 AD3d 428] |
| April 3, 2012 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Daquan Mathis, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Andrew E. Seewald of counsel), forrespondent.
Judgment, Supreme Court, New York County (Robert H. Straus, J.H.O., and RichardCarruthers, J., at hearing; Analisa Torres, J., at jury trial and sentencing), rendered May 4, 2010,as amended June 24 and July 21, 2010, convicting defendant of robbery in the first and seconddegrees and attempted robbery in the first and second degrees, and sentencing him to anaggregate term of 10 years, unanimously affirmed.
The court properly denied defendant's motion to suppress identification testimony. Under theunusual circumstances of the case, the display of a single photograph was not unduly suggestive.This procedure took advantage of an unexpected opportunity to obtain an identification while theattempted robbery victim's memory of the crime was still fresh. The police had only a cell phonephoto of a person they suspected to be the then-unnamed and unapprehended perpetrator, andinsufficient information to obtain a police photo. Accordingly, it would have been impracticableto construct a fair photo array. These factors created a unique exigency justifying this procedure.
In any event, the passage of time between the single-photo identification and the victim's[*2]identification of defendant at a lineup was sufficient toattenuate any possible taint (see Peoplev Leibert, 71 AD3d 513, 514 [2010], lv denied 15 NY3d 752 [2010]). Finally,there was overwhelming evidence of defendant's guilt, even without identification testimony.Concur—Friedman, J.P., DeGrasse, Freedman and Abdus-Salaam, JJ.