People v. Lathrop

242 A.D.2d 876, 662 N.Y.S.2d 962, 1997 N.Y. App. Div. LEXIS 10420

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 30, 1997
• Status: Published

Opinion

Judgment unanimously affirmed. Memorandum: Defendant pleaded guilty to assault in the first degree, arising out of an incident in which he shot a man following an argument. He contends that County Court erred in denying his motion to suppress identification testimony that was the unattenuated by-product of two unduly suggestive identification procedures.

The record supports the suppression court’s determination that the identification of defendant by one witness from a single photograph was confirmatory in nature. The witness testified that he had known a person nicknamed “Bunnie” for a year, and the court properly concluded that the photograph of defendant was shown to the witness merely to confirm that the person in the photograph was the same person that the witness was referring to as “Bunnie”. That confirmatory identification comes within the “ ‘known to one another’ ” exception to the general rule (People v Rodriguez, 79 NY2d 445, 449; People v Collins, 60 NY2d 214, 219; People v Kahley, 214 AD2d 960, 961). The record also supports the court’s determination that the photo array shown to two other witnesses was not unduly suggestive. The fact that defendant was the only man in the six-man photo array who was not wearing a shirt does not render the identification procedure unduly suggestive (see, People v Burns, 186 AD2d 1015, 1016, lv denied 81 NY2d 837; People v Tedesco, 143 AD2d 155, 156, lv denied 73 NY2d 860; People v Mattocks, 133 AD2d 89, 90, lv denied 70 NY2d 801). (Appeal from Judgment of Monroe County Court, Bradstreet, J.—Assault, 1st Degree.) Present—Pine, J. P., Hayes, Wisner, Callahan and Doerr, JJ.