From Casetext: Smarter Legal Research

People v. Barber

Appellate Division of the Supreme Court of New York, Second Department
Jan 18, 2000
268 A.D.2d 485 (N.Y. App. Div. 2000)

Opinion

Submitted December 10, 1999

January 18, 2000

Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Minardo, J.), rendered September 27, 1996, convicting him of robbery in the second degree (two counts), upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Vaughan, J.), of that branch of the defendant's omnibus motion which was to suppress identification evidence.

M. Sue Wycoff, New York, N.Y. (Frank Brady of counsel), for appellant.

William L. Murphy, District Attorney, Staten Island, N Y (Jonathan J. Silbermann and David Frey of counsel), for respondent.

LAWRENCE J. BRACKEN, J.P., WILLIAM C. THOMPSON, THOMAS R. SULLIVAN, GABRIEL M. KRAUSMAN, JJ.


DECISION ORDER

ORDERED that the judgment is affirmed.

The defendant was indicted for three counts of robbery in the second degree and ultimately was convicted of two counts based on incidents which occurred on July 29, 1995, and July 30, 1995. On July 31, 1995, the defendant was detained for a showup in connection with the robbery which occurred on July 29, 1995. The defendant was identified by the complainant of that robbery as the person who had robbed him. In connection with the defendant's arrest for that robbery, an arrest photo was taken which was later placed in a photo array in connection with the robbery of July 30, 1995. The use by the police of this photo is challenged by the defendant.

The Supreme Court suppressed the showup identification finding that the police lacked reasonable suspicion to detain the defendant for the July 29, 1995, robbery. The Supreme Court found, however, that once the complainant identified the defendant the police had probable cause to arrest him. The defendant contends that the court erred in failing to suppress the lineup identification by the complainant in the July 30, 1995, robbery, which followed that complainant's identification of the defendant from the photo array. This contention is without merit. Even if the inclusion of the defendant's arrest photo in the photo array was improper, the lineup identification of the defendant by the complainant in the July 30, 1995, incident was sufficiently attenuated therefrom, and therefore suppression is not warranted (see, Pleasant v. New York, 54 N.Y.2d 972, 974, cert denied 455 U.S. 924; People v. Martinez, 37 N.Y.2d 662, 668-669 ). The police had independently learned the defendant's identity and whereabouts in connection with the July 30, 1995, robbery without relying on the improper detention which gave rise to the suppression of the showup identification concerning the July 29, 1995, robbery. Further, because the police independently suspected the defendant in the crime for which the photographic array was used, and since the defendant had a prior criminal record, the People have met their burden of establishing that a photograph of the defendant would inevitably have been discovered (see, People v. Turriago, 90 N.Y.2d 77, 86 ).

The defendant's remaining contentions are without merit.

BRACKEN, J.P., THOMPSON, SULLIVAN, and KRAUSMAN, JJ., concur.


Summaries of

People v. Barber

Appellate Division of the Supreme Court of New York, Second Department
Jan 18, 2000
268 A.D.2d 485 (N.Y. App. Div. 2000)
Case details for

People v. Barber

Case Details

Full title:THE PEOPLE, etc., respondent, v. ANTHONY BARBER, appellant. (Ind. No…

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

Date published: Jan 18, 2000

Citations

268 A.D.2d 485 (N.Y. App. Div. 2000)
701 N.Y.S.2d 645

Citing Cases

People v. Garcia

In any event, the defendant had abandoned the bag which was searched (see People v. Ramirez-Portoreal, 88…

People v. Adams

defendant's statement to law enforcement officials as fruit of the poisonous tree because this evidence fell…