People v. Summers

250 A.D.2d 412, 673 N.Y.S.2d 107, 1998 N.Y. App. Div. LEXIS 5390

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 12, 1998
• Status: Published

Opinion

—Judgment, Supreme Court, Bronx County (Robert Seewald, J., at suppression hearing; Steven Lloyd Barrett, J., at jury trial and sentence), rendered October 27, 1995, convicting defendant of robbery in the first degree, and sentencing him, as a persistent felony offender, to a term of 25 years to life, unanimously affirmed.

Defendant’s suppression motion was properly denied. The identification procedure was not unduly suggestive, and was permissible because only minutes earlier the complainant had independently recognized defendant as the person who had robbed her three days earlier (see, People v Brown, 235 AD2d 302, lv denied 89 NY2d 1032; People v Martindale, 202 AD2d 158, lv denied 83 NY2d 912).

The court properly exercised its discretion in denying defendant’s motion for a mistrial based on alleged jury taint, following appropriate inquiry of each juror by the court and counsel, which revealed that none of the remaining jurors possessed a state of mind that would prevent the rendering of an impartial verdict (see, People v Evans, 192 AD2d 337, lv denied 81 NY2d 1072).

Defendant’s redacted arrest photograph was properly admitted to demonstrate the change, as established by the record, in defendant’s appearance between the date of arrest and the time of trial (People v Nogueras, 196 AD2d 448, lv denied 82 NY2d 900), and to rebut the defense position that the complainant had not accurately described and identified defendant as the robber (see, People v Randall, 227 AD2d 131, lv denied 88 NY2d 940).

We perceive no abuse of discretion in sentencing. Concur— Sullivan, J. P., Nardelli, Williams and Andrias, JJ.