People v. Benjamin

Appellate Division of the Supreme Court of New York

People v. Benjamin

155 A.D.2d 375, 548 N.Y.S.2d 6, 1989 N.Y. App. Div. LEXIS 14583

Appellate Division of the Supreme Court of the State of New York·Decided November 28, 1989·Published·Cited by 7 cases

Opinion

— Judgment of the Supreme Court, New York County (Franklin Weissberg, J.), rendered May 31, 1988, which convicted defendant, after a jury trial, of one count each of robbery in the first and second degrees, and criminal possession of a weapon in the second and third degrees, and sentenced him to concurrent prison terms of 9 to 18 years, 4 to 8 years (two terms) and 3 to 6 years, is unanimously affirmed.

There is no constitutional requirement that a defense-requested in-court lineup be conducted, as such request is addressed to the sound discretion of the court. (Sims v Sullivan, 867 F2d 142, 145 [2d Cir 1989]; People v Pearce, 48 NY2d 897 [1979]; People v Grady, 133 Misc 2d 211, 227 [Sup Ct, Bronx County 1986].)

We find that the trial court did not abuse its discretion in denying defendant’s request to preclude the witness from making an in-court identification while defendant was seated at defense counsel’s table or, in the alternative, to conduct an in-court identification while he sat among a group of people in the audience. The reliability of the complaining witness’s [376] identification testimony concerning defendant was never sufficiently cast into doubt. The witness’s out-of-court identification was spontaneous and in no way tainted by police action. Moreover, the witness’s in-court identification was based on his ability to view defendant for several minutes and in good lighting during the robbery and flight therefrom from a short distance away. (See, People v Perez, 139 AD2d 460 [1st Dept 1988], affd 74 NY2d 637 [1989].) Concur — Kupferman, J. P., Milonas, Kassal and Ellerin, JJ.

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— Judgment of the Supreme Court, New York County (Franklin Weissberg, J.), rendered May 31, 1988, which convicted defendant, after a jury trial, of one count each of robbery in the first and second degrees, and criminal possession of a weapon in the second and third degrees, and sentenced him to concurrent prison terms of 9 to 18 years, 4 to 8 years (two terms) and 3 to 6 years, is unanimously affirmed.

There is no constitutional requirement that a defense-requested in-court lineup be conducted, as such request is addressed to the sound discretion of the court. (Sims v Sullivan, 867 F2d 142, 145 [2d Cir 1989]; People v Pearce, 48 NY2d 897 [1979]; People v Grady, 133 Misc 2d 211, 227 [Sup Ct, Bronx County 1986].)

We find that the trial court did not abuse its discretion in denying defendant’s request to preclude the witness from making an in-court identification while defendant was seated at defense counsel’s table or, in the alternative, to conduct an in-court identification while he sat among a group of people in the audience. The reliability of the complaining witness’s [376] identification testimony concerning defendant was never sufficiently cast into doubt. The witness’s out-of-court identification was spontaneous and in no way tainted by police action. Moreover, the witness’s in-court identification was based on his ability to view defendant for several minutes and in good lighting during the robbery and flight therefrom from a short distance away. (See, People v Perez, 139 AD2d 460 [1st Dept 1988], affd 74 NY2d 637 [1989].) Concur — Kupferman, J. P., Milonas, Kassal and Ellerin, JJ.

People v. Benjamin, 155 A.D.2d 375, 548 N.Y.S.2d 6, 1989 N.Y. App. Div. LEXIS 14583 (N.Y. Ct. App. 1989).

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