People v. Simmons

247 A.D.2d 494, 667 N.Y.S.2d 945, 1998 N.Y. App. Div. LEXIS 994

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 9, 1998
• Status: Published

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Queens County (McGann, J.), rendered July 15, 1994, convicting him of murder in the second degree (three counts), robbery in the first degree, and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial (Appelman, J.), of those branches of the defendant’s omnibus motion which were to suppress identification testimony.

Ordered that the judgment is affirmed.

The record of the Rodriguez hearing (see, People v Rodriguez, 79 NY2d 445), supports the hearing court’s determination that the taxi driver who unwittingly transported the defendant and his accomplices to the crime scene was sufficiently familiar with the defendant that his photographic identification was merely confirmatory (see, People v Rodriguez, supra; People v Gissendanner, 48 NY2d 543).

The driver testified that the defendant had been in his taxi on 10 occasions in the eight months prior to the crime, including one occasion two or three days before the crime; that the defendant traveled with the same group of-men; that they usually requested that he be their driver; that they always asked to be driven to the same location; and that the defendant always paid the fare. Under these circumstances, there was no risk that any police suggestion may have caused a misidentification, and a Wade hearing was therefore unnecessary.

The defendant’s remaining contentions are either unpreserved for appellate review, without merit, or involve harmless errors.

Joy, J. P., Krausman, Goldstein and Luciano, JJ., concur.