People v. Prado

276 A.D.2d 383, 714 N.Y.S.2d 475, 2000 N.Y. App. Div. LEXIS 10642

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 19, 2000
• Status: Published

Opinion

Judgment, Supreme Court, Bronx County (David Stadtmauer, J.), rendered September 4, 1997, convicting defendant, after a jury trial, of two counts of robbery in the first degree, and sentencing him, as a persistent violent felony offender, to concurrent terms of 14 years to life, and judgment, same court (John Stackhouse, J., at hearing; David Stadtmauer, J., at plea and sentence), rendered September 4, 1997, convicting defendant of robbery in the second degree and sentencing him, as a persistent violent felony offender, to a concurrent term of 8 years to life, unanimously affirmed.

The verdict was not against the weight of the evidence. Issues concerning identification and credibility were properly presented to the jury for its consideration and there is no reason to disturb its findings.

As to each of defendant’s cases, his suppression motion was properly denied. The record supports both hearing courts’ findings that the photo array and lineup identification procedures were fair and nonsuggestive. There is no requirement that the participants in a lineup or photo array be identical in appearance, and all that is required is that they resemble each other sufficiently so that defendant is not “singled out for identification” (People v Chipp, 75 NY2d 327, 336, cert denied 498 US 833). Since the hearing courts reviewed the photographic arrays and the lineup photograph and made findings of nonsuggestiveness, the loss of certain photographs was harmless (see, People v Davila, 257 AD2d 485, lv denied 93 NY2d 968; see also, People v Hernandez, 70 NY2d 833). Concur — Rosenberger, J. P., Williams, Wallach, Saxe and Buckley, JJ.