People v. Stephens

Appellate Division of the Supreme Court of New York

People v. Stephens

248 A.D.2d 214, 670 N.Y.S.2d 185, 1998 N.Y. App. Div. LEXIS 2457

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 12, 1998

StatusPublished

Cited by1 cases

This text of 248 A.D.2d 214 (People v. Stephens) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Stephens, 248 A.D.2d 214, 670 N.Y.S.2d 185, 1998 N.Y. App. Div. LEXIS 2457 (N.Y. Ct. App. 1998).

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Opinion

—Judgment, Supreme Court, New York County (James Leff, J.), rendered May 2, 1995, convicting defendant, after a jury trial, of robbery [215]*215in the first and second degrees and unauthorized use of a vehicle in the third degree, and sentencing him, as a second felony offender, to concurrent prison terms of 7V2 to 15 years on the robbery convictions and 1 year on the remaining conviction, unanimously affirmed.

Defendant’s motion to suppress identification testimony was properly denied. The testimony of the officer who conducted the lineup, credited by the hearing court, and his report, which indicated the age, weight and height of defendant and the fillers, as well as the fact that all were black males of similar complexion and with facial hair, were sufficient to establish the fairness of the lineup (see, People v Green, 188 AD2d 385, 386, Iv denied 81 NY2d 840). The evidence established that all the participants were of similar height and weight, and any difference was minimized by the fact that they were seated and wore numbers in front of them (see, People v Herrera, 219 AD2d 511, Iv denied 87 NY2d 847). Although the officer could not recall what either defendant or the fillers were wearing, there is no indication that defendant did in fact wear any distinctive article, and the victim had only described a hat and no other aspect of attire, thus reducing any likelihood that defendant would have been singled out for that reason (see, People v Gourdine, 223 AD2d 428, 429, Iv denied 88 NY2d 848).

Defendant’s motion to suppress his statement was also properly denied. Defendant’s objection was not sufficient to preserve his current argument that his crumpling up and discarding of his first written statement, the one now at issue, constituted an invocation of his right to remain silent and we decline to review it in the interest of justice. Were we to review this claim, we would find it without merit in light of the fact that defendant wrote and discarded the first statement in full view of the officer, and immediately began to write a second statement, without any request by the police, and stated he wanted an attorney only after the officer asked defendant what he knew about “the robbery” while defendant was writing that second confession (see, People v Hendricks, 90 NY2d 956).

Concur — Ellerin, J. P., Nardelli, Williams and Mazzarelli, JJ.

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—Judgment, Supreme Court, New York County (James Leff, J.), rendered May 2, 1995, convicting defendant, after a jury trial, of robbery [215]*215in the first and second degrees and unauthorized use of a vehicle in the third degree, and sentencing him, as a second felony offender, to concurrent prison terms of 7V2 to 15 years on the robbery convictions and 1 year on the remaining conviction, unanimously affirmed.

Defendant’s motion to suppress identification testimony was properly denied. The testimony of the officer who conducted the lineup, credited by the hearing court, and his report, which indicated the age, weight and height of defendant and the fillers, as well as the fact that all were black males of similar complexion and with facial hair, were sufficient to establish the fairness of the lineup (see, People v Green, 188 AD2d 385, 386, Iv denied 81 NY2d 840). The evidence established that all the participants were of similar height and weight, and any difference was minimized by the fact that they were seated and wore numbers in front of them (see, People v Herrera, 219 AD2d 511, Iv denied 87 NY2d 847). Although the officer could not recall what either defendant or the fillers were wearing, there is no indication that defendant did in fact wear any distinctive article, and the victim had only described a hat and no other aspect of attire, thus reducing any likelihood that defendant would have been singled out for that reason (see, People v Gourdine, 223 AD2d 428, 429, Iv denied 88 NY2d 848).

Defendant’s motion to suppress his statement was also properly denied. Defendant’s objection was not sufficient to preserve his current argument that his crumpling up and discarding of his first written statement, the one now at issue, constituted an invocation of his right to remain silent and we decline to review it in the interest of justice. Were we to review this claim, we would find it without merit in light of the fact that defendant wrote and discarded the first statement in full view of the officer, and immediately began to write a second statement, without any request by the police, and stated he wanted an attorney only after the officer asked defendant what he knew about “the robbery” while defendant was writing that second confession (see, People v Hendricks, 90 NY2d 956).

Concur — Ellerin, J. P., Nardelli, Williams and Mazzarelli, JJ.

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248 A.D.2d 214, 670 N.Y.S.2d 185, 1998 N.Y. App. Div. LEXIS 2457, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-stephens-nyappdiv-1998.

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