People v. Powell

269 A.D.2d 178, 703 N.Y.S.2d 710, 2000 N.Y. App. Div. LEXIS 1145

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 8, 2000
• Status: Published

Opinion

—Judgment, Supreme Court, New York County (Richard Carruthers, J.), rendered September 30, 1996, convicting defendant, after a jury trial, of robbery in the second degree, and sentencing him to a term of IV2 to 4V2 years, unanimously affirmed.

Defendant’s motion to suppress a lineup identification as tainted by a prior single-photo identification was properly denied. Shortly before the lineup, a newly assigned detective looked through the case file for the first time and unexpectedly discovered a photograph of defendant. The complainant, who was seated nearby, caught a momentary glimpse of defendant’s photo and recognized it as the same photo he had previously selected from a book containing numerous photos. The detective immediately covered the photo and directed the complainant to disregard it. We conclude that this inadvertent single-photo identification was “unavoidable” (People v Clark, 85 NY2d 886, 889). In any event, from all the circumstances, and particularly from the strong evidence of independent source adduced at the hearing, the single-photo identification did not render the lineup unduly suggestive (see, People v Perez, 221 AD2d 169, lv denied 87 NY2d 976). Concur — Rosenberger, J. P., Ellerin, Wallach and Saxe, JJ.