People v. Powell

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

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.