People v. Charlotte

281 A.D.2d 254, 721 N.Y.S.2d 771, 2001 N.Y. App. Div. LEXIS 2467

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 15, 2001
• Status: Published

Opinion

—Judgment, Supreme Court, Bronx County (George Covington, J., at suppression hearing; Joseph Cerbone, J., at jury trial and sentence), rendered March 14, 1996, convicting defendant of murder in the second degree and robbery in the first degree, and sentencing him to concurrent terms of 25 years to life and 121/2 to 25 years, respectively, unanimously affirmed.

Defendant’s suppression motion was properly denied. Defendant’s present argument for suppression of the lineup identification is unpreserved for appellate review (People v Tutt, 38 NY2d 1011), and we decline to review it in the interest of justice. Were we to review this claim, we would find that the eyewitness’s inadvertent viewing of the fillers prior to the lineup resulted from his failure to follow police instructions and was not attributable to the police (see, People v Bellinger, 253 AD2d 701, lv denied 92 NY2d 1028). Concur — Ellerin, J. P., Wallach, Lerner and Saxe, JJ.