| People v Fingall |
| 2016 NY Slip Op 00646 [136 AD3d 622] |
| February 3, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Laron Fingall, Appellant. |
Lynn W. L. Fahey, New York, NY (John B. Latella of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, NY (Leonard Joblove, Rhea A.Grob, and John J. Hughes III of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Mangano, Jr., J.), rendered January 24, 2013, convicting him of robbery in the firstdegree and criminal mischief in the fourth degree, upon a jury verdict, and imposingsentence. The appeal brings up for review the denial, after a hearing, of that branch of thedefendant's omnibus motion which was to suppress identification testimony.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the hearing court did not err in failing tosuppress the lineup identification testimony. While "the fillers used in a lineup must besufficiently similar to the defendant so that no characteristic or visual clue would orientthe viewer toward the defendant as a perpetrator of the crimes charged" (People v Jean-Baptiste, 57AD3d 566, 566 [2008]), "[t]here is no requirement . . . that a defendantin a lineup be surrounded by people nearly identical in appearance" (People vChipp, 75 NY2d 327, 336 [1990]; see People v Moore, 118 AD3d 916, 918 [2014];People v Cintron, 226 AD2d 390, 390-391 [1996]). Here, the photographs takenof the lineup reveal that the fillers sufficiently resembled the defendant. Any differencesin height and weight were minimized by the fact that the participants were seated andholding number cards in front of their torsos (see People v Moore, 118 AD3d at918; People v Brown, 47AD3d 826, 827 [2008]; People v Shaw, 251 AD2d 686 [1998]). More thanthat was not required here (cf.People v Kenley, 87 AD3d 518 [2011]).
The defendant's contention that the testimony of a police detective implicitlybolstered the complainant's identification of the defendant from a lineup is unpreservedfor appellate review (see CPL 470.05 [2]). In any event, the contention is withoutmerit, as the detective merely testified that he handed the identifying witness a certainform to fill out after viewing the lineup, and did not indicate how the witness filled outthe form, or what action, if any, was taken after the form was filled out (cf. People v Rankins, 81 AD3d857, 858 [2011]; People vNesbitt, 77 AD3d 854, 855 [2010]; People v Clark, 28 AD3d 785, 786 [2006]; People vFields, 309 AD2d 945 [2003]). Accordingly, the testimony did not provide officialconfirmation of the complainant's identification of the defendant so as to constituteimplicit bolstering.
Finally, we find unpersuasive the defendant's contention that the trial court should[*2]have instructed the jury on Penal Law§ 20.15 with respect to the count of robbery in the first degree, on a theoryof accomplice liability for another perpetrator's display of an operable firearm (seePenal Law § 160.15 [4]). Penal Law § 20.15, requiringproof of the "culpable mental state" of an accomplice, does not apply to the aggravatingcircumstances of robbery in the first degree (see Penal Law§§ 20.15, 160.15; People v Fullan, 92 NY2d 690, 693 [1999];People v Miller, 87 NY2d 211 [1995]; People v Murad, 55 AD3d 754 [2008]; People vCruz, 309 AD2d 564 [2003]; People v Garcia, 302 AD2d 474 [2003]). Thecourt properly instructed the jurors that the prosecution was not required to prove that thedefendant had prior knowledge of another perpetrator's intent to display an operablefirearm, because such knowledge was not an element of robbery in the first degree(see People v Murad, 55 AD3d at 754; People v Cruz, 309 AD2d at 565;People v Garcia, 302 AD2d at 475). Mastro, J.P., Austin, Maltese and Barros, JJ.,concur.