People v. Fowler

71 A.D.2d 695, 418 N.Y.S.2d 238, 1979 N.Y. App. Div. LEXIS 18141

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 5, 1979
• Status: Published

Opinion

Appeal from a judgment of the County Court of Albany County, rendered May 24, 1978, upon a verdict convicting defendant of the crime of criminal possession of a forged instrument in the second degree (two counts). Upon this appeal, the defendant contends that the trial court erred in denying her pretrial motion to suppress identification testimony of witnesses who participated in a photographic identification procedure. The record establishes that the police, while laudably exhibiting some 11 photographs of 10 different, but similar individuals to the eyewitnesses, included in each showing two pictures of the defendant. Such a suggestive procedure cannot be condoned and respondent’s contention that the case of People v Joyiens (39 NY2d 197) is supportive of such procedure is unfounded. However, the record does not establish that the suggestive procedure was so prejudicial as to irreparably taint any in-court identification by the witnesses. The defendant attempts to limit the inquiry solely to the pretrial hearing, but the record includes the trial minutes which establish that the witnesses had ample face-to-face viewing of the defendant to establish an independent basis for a proper identification and the defendant makes no effort to show to the contrary. Judgment affirmed. Mahoney, P. J., Sweeney, Kane, Staley, Jr., and Herlihy, JJ., concur.