| People v Reaves |
| 2013 NY Slip Op 08275 [112 AD3d 746] |
| December 11, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Kevin Reaves, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and KeithDolan of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (J.Goldberg, J.), rendered February 15, 2011, convicting him of attempted murder in thesecond degree and criminal possession of a weapon in the second degree, upon a juryverdict, and imposing sentence. The appeal brings up for review the denial of that branchof the defendant's omnibus motion which was to suppress his statements to lawenforcement officials and identification testimony.
Ordered that the judgment is affirmed.
The Supreme Court properly denied, after a hearing, that branch of the defendant'somnibus motion which was to suppress identification testimony from a witness whoidentified the defendant in both a photographic array and a lineup. While the People'sfailure to preserve the original photographic array gives rise to a presumption ofsuggestiveness (see People vBridges, 63 AD3d 752, 753 [2009]; People v Wedgeworth, 156 AD2d529 [1989]), the People presented evidence to rebut that presumption (see People vBridges, 63 AD3d at 753; People v King, 291 AD2d 413 [2002]; Peoplev Stokes, 139 AD2d 785 [1988]). Upon our review of the record of the hearing, wefind that the photographic array was not suggestive (see People v Curtis, 71 AD3d 1044, 1045 [2010]). As tothe lineup, there is "no requirement that a defendant in a lineup be surrounded byindividuals nearly identical in appearance" (People v Brown, 89 AD3d 1032, 1033 [2011]). Here, thealleged variations in appearance between the fillers and the defendant were not sosubstantial as to render the lineup impermissibly suggestive (see People vWaters, 195 AD2d 613, 614 [1993]; see also People v Spence, 92 AD3d 905 [2012]; People v Jean-Baptiste, 57AD3d 566, 567 [2008]; People v Jordan, 44 AD3d 875, 876 [2007]).
The Supreme Court also properly denied that branch of the defendant's omnibusmotion which was to suppress his statements to law enforcement officials. "Thecredibility determinations of the Supreme Court, which saw and heard the witnesses atthe suppression hearing, are entitled to great weight on appeal, and will not be disturbedunless they are unsupported by the record" (People v Timmons, 54 AD3d 883, 885 [2008]). Here, theevidence presented at the suppression hearing supports the Supreme Court'sdetermination that the defendant's spontaneous statements, made after a police officerarrested him but before Miranda warnings (see Miranda v Arizona, 384[*2]US 436 [1966]) were administered, were nottriggered by any police questioning or other conduct which reasonably could have beenexpected to elicit a statement from him (see People v Davis, 32 AD3d 445, 446 [2006]; Peoplev Thorpe, 126 AD2d 685, 686 [1987]).
The Supreme Court providently exercised its discretion in denying the defendant'smotion for a mistrial. "The decision to declare a mistrial rests within the sound discretionof the trial court, which is in the best position to determine if this drastic remedy isnecessary to protect the defendant's right to a fair trial" (People v Brown, 76 AD3d532, 533 [2010]). Here, while the challenged testimony was improper, any prejudicetherefrom was alleviated by the Supreme Court's actions in immediately striking thetestimony from the record and providing a curative instruction to the jury (see People v Townsend, 100AD3d 1029, 1030 [2012]; see also People v Brock, 143 AD2d 678, 679[1988]).
The defendant failed to preserve for appellate review his contention that he wasdeprived of a fair trial by the Supreme Court's delay in discharging a juror who expressedconcerns that may have affected her ability to be fair and impartial. Skelos, J.P., Balkin,Leventhal and Sgroi, JJ., concur.