People v. Adams

Full title: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. ALFRED ADAMS, Appellant

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Dec 9, 1985

115 A.D.2d 542 (N.Y. App. Div. 1985)

Opinion

December 9, 1985

Appeal from the County Court, Nassau County (Baker, J., Delin, J.).

Judgments affirmed.

The photographs shown to complainant under indictment No. 54908 each portrayed a person standing next to a measuring device by which the heights of the various individuals could be discerned. As height was a significant aspect of complainant's initial description of the robbers, this photographic array impermissibly pointed to defendant's picture as being that of the perpetrator (see, People v Lloyd, 108 A.D.2d 873; People v Shea, 54 A.D.2d 722), especially in view of the fact that only one other subject was the same height as the five-feet, one-inch-tall defendant. All the other subjects in the array were approximately four or more inches taller. In addition, the majority of photographs had dates showing on their faces by which the viewer could discern when the picture was taken. One date was as early as 1968, which was 14 years before the crime. Similarly, the subsequent lineup was unduly suggestive in that the individuals therein, initially seated and partially covered with sheets so as to accentuate only their faces, were directed to stand and "crouch" down. Reversal is not mandated, however, because complainant had ample opportunity to view defendant both before and during the crime (see, People v Lloyd, supra; People v Anderson, 107 A.D.2d 751).

As to the denial of the branch of defendant's omnibus motion under indictment No. 55164 which was to suppress his in-court identification, he has failed to meet his burden of establishing that the pretrial identification procedures utilized therein were unduly suggestive (see, People v Jackson, 108 A.D.2d 757). In any event, the evidence of complainant's opportunity to view defendant before and during the robbery was sufficient to establish an independent basis.

We have examined defendant's remaining contention and find it to be without merit. Lazer, J.P., Thompson, Weinstein and Niehoff, JJ., concur.