People v. Bolling

148 A.D.2d 622, 539 N.Y.S.2d 85, 1989 N.Y. App. Div. LEXIS 3856

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 20, 1989
• Status: Published

Opinion

Appeal by the defendant from a judgment of the County Court, Nassau County (Delin, J.), rendered April 18, 1985, convicting him of robbery in the first degree and criminal use of a firearm in the first degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

We have previously indicated in People v Malphurs (111 AD2d 266, 268) that we would view with great caution situations where, as here, a witness tentatively selects more than one photograph of persons resembling the perpetrator and, of the chosen photographs, only the defendant’s picture is repeated in a second photographic array containing a small number of photographs not previously shown. However, we are convinced that the photographic identification procedures employed in this case were not "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification” (Simmons v United States,. 390 US 377, 384). The victim store manager saw the faces of the perpetrators in his well-lit store for approximately 10 minutes. The second photographic array did not contain the same picture of the defendant that the store operator had picked out as a "possible”, but one taken years later. At the second viewing, the store manager, a retired detective, picked out the defendant within one or two seconds. We also agree with the hearing court that the lineup was fair (see, People v Logan, 25 NY2d 184, cert denied 396 US 1020).

We note that the People established by clear and convincing evidence at the suppression hearing that the in-court identification by the store manager and the police officer was based on ample opportunity to view the defendant (see, People v Malphurs, supra, at 268).

In addition, the instances of alleged prosecutorial misconduct were not preserved for appellate review (GPL 470.05 [2]) since either no objection was made or the objection was sustained and there was no request for further curative instructions, suggesting that the defendant was satisfied with the court’s action (see, People v Medina, 53 NY2d 951, 953).

We also determine that the People did not violate the defendant’s right to a speedy trial since less than six months of pretrial delay was chargeable to them (GPL 30.30 [1] [a]; 210.20 [1] [g]; 210.45; see also, People v Jackson, 145 AD2d 646).

We have considered the defendant’s remaining contentions, including those raised in his supplemental pro se brief, and find them to be without merit. Thompson, J. P., Lawrence, Kunzeman and Rubin, JJ., concur.