People v. Rodriguez

124 A.D.2d 611, 507 N.Y.S.2d 756, 1986 N.Y. App. Div. LEXIS 61923

Opinion

The defendant and another robbed a group of youths while they were in a well-lit archway. Following the robbery, three of the youths made a photographic identification of the defendant at the precinct. The defendant was arrested a month after the incident and placed in a lineup. He chose his own position in the lineup and was identified by a victim.

The defendant argues on appeal that evidence of the lineup identification should have been suppressed because he was the only individual with a large Afro hair style, he was the only Hispanic, and he was the youngest participant. We disagree. A photograph of the lineup does not support the defendant’s arguments. In addition, a police officer testified that there were two other members of the lineup with Afro haircuts and one other man with bushy, curly hair in the six-man lineup. In this regard, there is no requirement that a defendant in a lineup be surrounded by individuals nearly identical in appearance (see, United States v Porter, 430 F Supp 208, 211-212). The person viewing the lineup testified that he had observed the defendant for seven minutes during the incident and had previously made a photographic identification of the defendant immediately following the incident.

With regard to the makeup of the lineup, the police made an attempt to locate persons for the lineup who resembled the defendant. Unknown to them, one of the participants was a police officer known to the viewer. Since there is no per se requirement regarding the numerical composition of lineups, this did not require suppression of the lineup identification (see, People v Norris, 122 AD2d 82). The issue involved in ascertaining the validity of a lineup identification concerns "undue suggestiveness” which is determined by considering the totality of the circumstances surrounding the lineup. At bar, there has not been such a showing (see, People v Norris, supra), and the hearing court properly denied the motion to suppress the lineup identification.

The defendant further argues that the prosecutor’s summation deprived him of a fair trial. Our review of the record reveals that the prosecutor’s summation did not exceed the broad bounds of fair comment permissible in closing argument (see, People v Galloway, 54 NY2d 396, 399; People v Allen, 121 AD2d 453), and was, in part, in response to defense counsel’s own summation arguments (see, People v Ortiz, 116 AD2d 531). Thompson, J. P., Weinstein, Rubin and Spatt, JJ., concur.