Summary
In People v. Flowers (150 A.D.2d 721, lv denied 74 N.Y.2d 809), there was no evidence that any of the eyewitnesses viewed the defendant's photograph prior to the lineup.
Summary of this case from People v. HolmesOpinion
May 22, 1989
Appeal from the Supreme Court, Kings County, Miller, J., Douglass, J.
Ordered that the judgments are affirmed.
The defendant contends that he was entitled to suppression of the victims' lineup identification of him on the grounds that the victims may have advised one another as to whom they had selected and because there was a possibility that they could have seen photographs of him in the police precinct prior to their identification. We disagree. The record reveals that while waiting to view the lineup, the complainants were instructed not to speak to one another, and three police officers were with them to insure their silence. Additionally, there was absolutely no evidence adduced at the hearing to indicate that any of the eyewitnesses saw the defendant's photograph at the time of the lineup prior to their identification of him. The defendant's speculation as to what may have occurred during the lineup procedure is insufficient to sustain his burden of proof that the procedure was suggestive, since such claims are not supported by the hearing record (see, People v Morales, 134 A.D.2d 292).
We further find that, under the circumstances, the sentence imposed under indictment No. 7605/86 was not excessive (see, People v Suitte, 90 A.D.2d 80). The sentence imposed under indictment No. 6304/86, was the result of a negotiated plea. Accordingly, the defendant may not now be heard to complain that it was excessive (see, People v Justice, 149 A.D.2d 437; People v Moore, 141 A.D.2d 769). Bracken, J.P., Lawrence, Harwood and Balletta, JJ., concur.