People v. Santos

Full title: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. Luis SANTOS, Appellant

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

Date published: May 12, 1998

250 A.D.2d 413 (N.Y. App. Div. 1998)

673 N.Y.S.2d 94

Opinion

May 12, 1998

Appeal from the Supreme Court, New York County (Charles Tejada, J.).

Defendant's motion to suppress identification testimony was properly denied. The fact that a police officer told the victim that he would be viewing a lineup containing a suspect in his robbery did not render the procedure unduly suggestive ( see, People v. Rodriguez, 64 N.Y.2d 738, 740-741; People v. Ortiz, 216 A.D.2d 164, 165, lv denied 86 N.Y.2d 799). Defendant's blue shirt, although worn by him during the commission of the crime, was not so distinctive as to draw attention to himself ( see, People v. Padilla, 206 A.D.2d 271; People v. Gega, 188 A.D.2d 305, 306, lv denied 81 N.Y.2d 886); the four fillers otherwise resembled defendant ( see, People v. Torres, 182 A.D.2d 587, 588, lv denied 80 N.Y.2d 897), and all three witnesses credibly testified that they concentrated on defendant's face, not his clothing.

The trial court properly exercised its discretion in denying defendant's challenges for cause to three venirepersons. The totality of each venireperson's responses established that the particular venireperson would decide the case solely on the evidence and obey the court's instructions ( see, People v. Williams, 63 N.Y.2d 882).

Defendant's request for a missing witness charge was properly denied, since the witness was unavailable, despite the People's diligent efforts to locate him, and the testimony, though relevant and material, would have been cumulative ( see, People v. Gonzalez, 68 N.Y.2d 424). In any event, any error in this respect was harmless in light of the overwhelming evidence of guilt ( see, People v. Fields, 76 N.Y.2d 761, 763).

Concur — Sullivan, J.P., Nardelli, Williams and Andrias, JJ.