| People v DeJesus |
| 2016 NY Slip Op 04234 [140 AD3d 788] |
| June 1, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Roberto DeJesus, Appellant. |
Lynn W. L. Fahey, New York, NY (David P. Greenberg of counsel), forappellant.
Kenneth P. Thompson, District Attorney, Brooklyn, NY (Leonard Joblove, SholomJ. Twersky, and John C. Carroll of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (J.Goldberg, J.), rendered February 19, 2013, convicting him of robbery in the seconddegree, upon his plea of guilty, and imposing sentence. The appeal brings up for reviewthe denial, after a hearing, of those branches of the defendant's omnibus motion whichwere to suppress physical evidence, identification testimony, and statements he made tolaw enforcement officials.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the hearing court properly determined thatthere was reasonable suspicion to stop and frisk the defendant, who had exited a vehiclethat fit the description heard over a police radio transmission of a vehicle involved in anarmed robbery earlier in the evening. Moreover, the defendant, who exited the vehicle onhis own volition just prior to when the police reached the vehicle, matched thedescription of one of the perpetrators of the robbery, and the police observed a bulge inthe defendant's waist area. Under these circumstances, the police were justified instopping and frisking the defendant (see People v Morales, 58 AD3d 873, 874 [2009]; People v Gray, 35 AD3d629 [2006]; People v Wilson, 264 AD2d 862, 862 [1999]; People vEllison, 222 AD2d 693, 694 [1995]). Further, the police had probable cause to arrestthe defendant once the frisk revealed that he was carrying a knife and a pellet gun(see People v Wilson, 264 AD2d at 862).
Additionally, the defendant knowingly and voluntarily waived his Mirandarights prior to making his statements (see Miranda v Arizona, 384 US 436[1966]). While the defendant had been in custody for several hours prior to the time hemade his statements, the defendant was not subject to unrelenting questioning or pressureduring that time (see People v Tarsia, 50 NY2d 1, 12 [1980]).
Further, the hearing court properly declined to suppress lineup identificationevidence. "While lineup participants should share the same general physicalcharacteristics, there is no requirement that a defendant in a lineup be surrounded bypersons who are nearly identical in appearance" (People v Marshall, 51 AD3d 821, 821 [2008]). Here, thelineup was not unduly suggestive, and the photographs entered into evidence at thesuppression hearing demonstrate that the fillers sufficiently resembled the defendant andthat the hats worn obscured the participants' hairstyles (see [*2]id.; People v Solis, 43 AD3d 1190 [2007]; People v Villacreses, 12 AD3d624, 625 [2004]). Rivera, J.P., Austin, Roman and Cohen, JJ., concur.