| People v Staton |
| 2016 NY Slip Op 03202 [138 AD3d 1149] |
| April 27, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Darren Staton, Appellant. |
Lynn W. L. Fahey, New York, NY (Bryan D. Kreykes of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano,Johnnette Traill, Ellen C. Abbot, and Merri Turk Lasky of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Latella, J.), rendered September 12, 2013, convicting him of robbery in the seconddegree, assault in the second degree, and robbery in the third degree, upon a jury verdict,and imposing sentence. The appeal brings up for review the denial, after a hearing, ofthat branch of the defendant's omnibus motion which was to suppress identificationtestimony.
Ordered that the judgment is affirmed.
The defendant contends that the photographic identification procedure employed inthis case was unduly suggestive. Initially, contrary to the People's assertion, thedefendant's argument is preserved for appellate review (see CPL 470.05 [2]).However, the defendant's contention is without merit.
"While the People have the initial burden of going forward to establish thereasonableness of the police conduct and the lack of any undue suggestiveness in apretrial identification procedure, it is the defendant who bears the ultimate burden ofproving that the procedure was unduly suggestive" (People v Chipp, 75 NY2d327, 335 [1990]; see People v Jackson, 98 NY2d 555, 559 [2002]; People v Dobbins, 112 AD3d735, 736 [2013]). "In determining whether a photographic array was 'undulysuggestive' the hearing court should consider whether there was any substantiallikelihood that the defendant would be singled out for identification" (People v Dunlap, 9 AD3d434, 435 [2004], quoting People v Chipp, 75 NY2d at 336; see People v Burroughs, 98AD3d 583, 583 [2012]). "There is no requirement that the photograph of adefendant shown as part of a photo array be surrounded by photographs of individualsnearly identical in appearance" (People v Starks, 91 AD3d 975, 975-976 [2012]; seePeople v Chipp, 75 NY2d at 336; People v Burroughs, 98 AD3d at 584).
Here, the People satisfied their initial burden of establishing that the photo array wasnot improper, and the defendant failed to demonstrate that the procedure was undulysuggestive. The participants in the photo array were sufficiently similar to the defendantin appearance such that there was little likelihood that he would be singled out foridentification based on particular characteristics (see People v Thomas, 104 AD3d 710, 711 [2013]; People v Brown, 89 AD3d1032, 1033 [2011]; Peoplev Ragunauth, 24 AD3d 472, 472 [2005]). We do not agree with the position ofour dissenting colleague that the defendant appears to be significantly older than theother individuals in the array, and that the characteristics of his picture draw the viewer'sattention toward it. The six-photograph array depicted men who appeared to be relativelyclose in age. Additionally, the participants were sufficiently similar to the defendant inskin tone, hairstyle, facial hair, pose, and attire (see People v Ferguson, 55 AD3d 926, 927 [2008];People v Wright, 297 AD2d 391, 391 [2002]; People v Robert, 184AD2d 597, 598 [1992]). Although it appears that the defendant is the only participant inthe array with salt and pepper hair, that difference, when considered together with theother similarities in the photographs, did not render the array unduly suggestive (see People v Epolito, 101AD3d 1603 [2012]; People v Ferguson, 55 AD3d at 927; see also People v Ortiz, 61AD3d 1003, 1003 [2009]). Accordingly, the Supreme Court properly denied thatbranch of the defendant's omnibus motion which was to suppress identificationtestimony.
The defendant next contends that the evidence was legally insufficient to establishthat one of the complainants suffered physical injury within the meaning of Penal Law§ 10.00 (9), as required for his convictions of robbery in the second degreeand assault in the second degree (see Penal Law §§ 160.10 [2][a]; 120.05 [12]). However, viewing the evidence in the light most favorable to theprosecution (see People v Contes, 60 NY2d 620, 621 [1983]), we find that it waslegally sufficient to establish that the complainant suffered physical injury within themeaning of Penal Law § 10.00 (9) (see People v Chiddick, 8 NY3d 445, 447 [2007]).Moreover, upon our independent review of the evidence pursuant to CPL 470.15 (5), weare satisfied that the verdict of guilt as to the counts of robbery in the second degree andassault in the second degree was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
The defendant's remaining contentions are without merit. Rivera, J.P., Roman andSgroi, JJ., concur.
Hall, J., dissents, and votes to reverse the judgment, grant that branch of thedefendant's omnibus motion which was to suppress identification testimony, and order anew trial, to be preceded by an independent source hearing, with the followingmemorandum: In my view, the Supreme Court erred in denying that branch of thedefendant's omnibus motion which was to suppress identification testimony.Consequently, I respectfully dissent.
Upon viewing the photographic array, my attention is immediately drawn to thedefendant's photograph, since the defendant appears to be significantly older than allother individuals in the array (see People v Dobbins, 112 AD3d 735, 737-738 [2013]).This age disparity is sufficiently apparent as to orient the viewer toward the defendant asa perpetrator of the crimes charged (see People v Robinson, 123 AD3d 1062, 1063 [2014]).Moreover, the defendant is the only individual in the array with salt and pepper hair, afeature specifically noted by one of the complainants in her description of the perpetrator(see People v Pena, 131AD3d 708 [2015]). In addition, the defendant is the only individual in the arraywearing a bright green shirt, and his photograph depicts a larger portion of his chest thanthe other individuals. In my view, these characteristics make the defendant's photographpop out and draw the viewer's attention toward it, so as to indicate that the police had"made a particular selection" (People v Curtis, 71 AD3d 1044, 1045 [2010]). Thus, thephotographic array is unduly suggestive.
Moreover, I find that, under the circumstances of this case, the passage of 7 and 12days, respectively, between the complainants' viewing of the photographic array and theirrespective identifications of the defendant at a lineup, was insufficient to attenuate anypossible taint from the viewing of the array (cf. People v Ortiz, 84 AD3d 839, 840 [2011]; People v Nedd, 79 AD3d1150 [2010]; People v Butts, 279 AD2d 587 [2001]). Consequently, it is myopinion that the Supreme Court should have granted that branch of the defendant'somnibus motion which was to suppress identification testimony.
[*2] I agree with all other determinations made by themajority.
Accordingly, I respectfully dissent, and vote to reverse the judgment and order a newtrial, to be preceded by an independent source hearing.