People v. Francis

67 A.D.2d 686, 412 N.Y.S.2d 163, 1979 N.Y. App. Div. LEXIS 10288

Opinion

— Appeal by the People from an order of the Supreme Court, Richmond County, dated February 10, 1978, which, after a hearing, granted defendant’s motion to suppress the identification testimony of the complaining witnesses, Jeffrey Muldoon and Ramona Mirro. Order reversed, on the law and the facts, and motion denied. We have examined the folders of photographs used by the police in seeking a photographic identification by the witnesses and find that there was no suggestiveness in the procedure employed. While the defendant’s picture appears in each of the three folders used by the police, there are other pictures contained therein which are also repeated. It is true that the witnesses should not have been shown the folders together; however, that fact appears to have had no effect here, as complainant Mirro remained unable to make a positive identification despite the fact that complainant Muldoon had already done so. Regarding Mirro’s identification of the defendant in Criminal Court, we also find no suggestiveness to have been present, since, among other factors, the identification was spontaneous (it occurred prior to the case having been called). Titone, J. P., Rabin, Gulotta and Cohalan, JJ., concur.