| People v Perkins |
| 2015 NY Slip Op 00787 [124 AD3d 915] |
| January 28, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Anthony Perkins, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Paul Skip Laisure and Patterson Belknap Webb& Tyler LLP [Stephen P. Younger and Maggie Wittlin], of counsel), forappellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Johnnette Traill, Nicoletta J. Caferri, and Jennifer Hagan of counsel), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Kron, J.), rendered December 6, 2010, convicting him of robbery in the first degree (twocounts), upon a jury verdict, and imposing sentence. The appeal brings up for review thedenial, after a hearing, of that branch of the defendant's omnibus motion which was tosuppress lineup identification testimony.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the hearing court properly declined tosuppress lineup identification evidence. " 'While lineup participants should sharethe same general physical characteristics, there is no requirement that a defendant in alineup be surrounded by persons who are nearly identical in appearance' " (People v Fleming, 65 AD3d702, 703 [2009], quoting People v Marshall, 51 AD3d 821, 821 [2008]). Here, thephotographs taken at the lineup reveal that the participants were similar to the defendantin skin tone, attire, and age, and that minor differences in height did not render the lineupunduly suggestive (see People v Marshall, 51 AD3d at 821; People v Johnson, 33 AD3d939, 940 [2006]). The defendant's dreadlock hairstyle was not part of the subjectcomplainants' descriptions of the perpetrator (see People v Marshall, 51 AD3d at821; People v Jordan, 44AD3d 875, 876 [2007]), was minimized by the fact that the participants all worehats, and, under the circumstances of this case, did not render the lineup undulysuggestive (see People v Marshall, 51 AD3d at 821; People v Diggs, 19 AD3d1098, 1099 [2005]; People v Briggs, 285 AD2d 514 [2001]).
Furthermore, contrary to the defendant's contention, the Supreme Court providentlyexercised its discretion in denying his motion, made during the trial, to reopen thesuppression hearing. The defendant failed to demonstrate that the new facts he profferedin support of the motion were likely to affect the original determination (see CPL710.40 [4]; People v Clark, 88 NY2d 552, 555 [1996]; People v Moore, 118 AD3d916, 918 [2014]).
The Supreme Court providently exercised its discretion in denying the defendant'srequest for an adverse inference instruction concerning the People's failure to preserveaudio recordings of certain 911 emergency telephone calls. There was no bad faith orlack of diligence on [*2]the part of the People, and thedefendant was not prejudiced, inasmuch as he was furnished with printed summaryreports of the content of the calls, commonly known as sprint reports, which affordedhim a sufficient opportunity to impeach the People's witness (see People v Brown, 92 AD3d455, 456-457 [2012]; People v Marengo, 276 AD2d 358, 359 [2000]).
The Supreme Court did not improvidently exercise its discretion in denying thedefendant's Batson challenges (see Batson v Kentucky, 476 US 79[1986]). The prosecutor provided race-neutral reasons for exercising peremptorychallenges against the subject prospective jurors. In response, the defendant failed toprove purposeful discrimination by the prosecution in exercising peremptory challengesagainst the prospective jurors, and there is no basis to disturb the court's determinationthat the prosecutor's proffered race-neutral reasons were not pretextual (see People v Hecker, 15 NY3d625, 656 [2010]; People vEnglish, 119 AD3d 706, 706 [2014]).
The defendant's remaining contentions are without merit. Balkin, J.P., Dickerson,Sgroi and Cohen, JJ., concur.