People v. Adams

167 A.D.2d 160, 561 N.Y.S.2d 240, 1990 N.Y. App. Div. LEXIS 13303

Opinion

Judgment, Supreme Court, New York County (Jerome Hornblass, J., at hearing, jury trial and sentence), rendered July 2, 1987, convicting defendant, after a jury trial, of robbery in the first degree and sentencing him to an indeterminate term of imprisonment of 7 to 14 years, unanimously affirmed.

The day after defendant robbed his victim on a subway staircase, she identified him at a lineup. Defendant now argues that the proceeding was unduly suggestive because he was heavier and taller than the others. We find no unnecessary suggestiveness that was conducive to an erroneous identification. The others were reasonably similar to defendant (People v Wiley, 137 AD2d 735, lv denied 71 NY2d 1035), and the victim made her identification only after the standins and defendant were directed to make a demand for money. Clearly, defendant’s girth and height did not single him out from the other participants.

Nor did the court’s supplemental instructions deprive defendant of a fair trial. They were responsive to the jury’s concerns and evenhandedly advised the jury to use its best efforts to reach a verdict. (People v Malloy, 55 NY2d 296, cert denied 459 US 847.) The court did not tell the jury that it had to reach a verdict or threaten to hold the jury indefinitely. Concur—Kupferman, J. P., Sullivan, Carro, Milonas and Smith, JJ.