People v. Benitez

Appellate Division of the Supreme Court of New York

People v. Benitez

162 A.D.2d 100, 556 N.Y.S.2d 59, 1990 N.Y. App. Div. LEXIS 6765

Appellate Division of the Supreme Court of the State of New York·Decided June 5, 1990·Published·Cited by 8 cases

Opinion

Judgment of the Supreme Court, Bronx County (David Levy, J.), rendered April 8, 1987, convicting defendant, after a nonjury trial, of robbery in the second degree (Penal Law § 160.10 [1]) and sentencing him, as a second felony offender, to an indeterminate term of imprisonment of from 4 to 8 years, unanimously affirmed.

[101] On appeal, defendant claims that the identification testimony should have been suppressed. Great weight must be accorded the determination of the hearing court, with its particular advantage of having seen and heard the witnesses (People v Prochilo, 41 NY2d 759, 761), and its determination will not be disturbed unless the testimony presented by the People is "inherently incredible or improbable” (People v Samuels, 68 AD2d 663, 666, affd 50 NY2d 1035). The record indicates that the People have met their burden of demonstrating the nonsuggestive nature of the police procedures with respect to the photographic identification (People v Rahming, 26 NY2d 411, 416) and the lineup (United States v Wade, 388 US 218).

We have considered defendant’s remaining contentions and find them to be without merit. Concur—Murphy, P. J., Milenas, Ellerin, Wallach and Rubin, JJ.

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Judgment of the Supreme Court, Bronx County (David Levy, J.), rendered April 8, 1987, convicting defendant, after a nonjury trial, of robbery in the second degree (Penal Law § 160.10 [1]) and sentencing him, as a second felony offender, to an indeterminate term of imprisonment of from 4 to 8 years, unanimously affirmed.

[101] On appeal, defendant claims that the identification testimony should have been suppressed. Great weight must be accorded the determination of the hearing court, with its particular advantage of having seen and heard the witnesses (People v Prochilo, 41 NY2d 759, 761), and its determination will not be disturbed unless the testimony presented by the People is "inherently incredible or improbable” (People v Samuels, 68 AD2d 663, 666, affd 50 NY2d 1035). The record indicates that the People have met their burden of demonstrating the nonsuggestive nature of the police procedures with respect to the photographic identification (People v Rahming, 26 NY2d 411, 416) and the lineup (United States v Wade, 388 US 218).

We have considered defendant’s remaining contentions and find them to be without merit. Concur—Murphy, P. J., Milenas, Ellerin, Wallach and Rubin, JJ.

People v. Benitez, 162 A.D.2d 100, 556 N.Y.S.2d 59, 1990 N.Y. App. Div. LEXIS 6765 (N.Y. Ct. App. 1990).

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Opinion

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