People v. Yousef

Appellate Division of the Supreme Court of New York

People v. Yousef

8 A.D.3d 820, 778 N.Y.S.2d 326, 2004 N.Y. App. Div. LEXIS 8602

Appellate Division of the Supreme Court of the State of New York·Decided June 17, 2004·Published·Cited by 16 cases

Opinion

Mercure, J.

Appeal from a judgment of the Supreme Court (Lamont, J.), rendered November 29, 2001 in Albany County, upon a verdict convicting defendant of the crimes of rape in the third degree and endangering the welfare of a child.

By a three-count indictment, defendant was charged with the [821]*821crimes of rape in the first degree, rape in the third degree and endangering the welfare of a child. The charges arose from defendant’s alleged rape of a 14-year-old girl at the Red Carpet Tnn in the City of Albany. Following a jury trial, defendant was convicted of rape in the third degree and endangering the welfare of a child and sentenced to concurrent prison terms aggregating IV3 to 4 years. Defendant appeals and we now affirm.

We reject defendant’s principal argument that the pretrial identification procedure was unduly suggestive. Prior to showing the victim a photo array in which defendant was the only clean-shaven individual, Detective Gary Schultz read the victim preprinted instructions indicating, among other things, that she should be aware that facial hair could be changed. A photo array is unduly suggestive if “ ‘some characteristic of one picture draws the viewer’s attention in such a way as to indicate that the police have made a particular selection’ ” (People v Jackson, 282 AD2d 830, 832 [2001], lv denied 96 NY2d 902 [2001], quoting People v Brown, 169 AD2d 934, 935 [1991], lv denied 77 NY2d 958 [1991]). Our review of the photo array reveals that the individuals depicted appeared to be approximately the same age, had similar hair lengths and skin tones, and all wore glasses. Moreover, Schultz’s testimony at the Wade hearing indicated that the six photographs bore no markings other than the numbers one through six and the victim identified defendant without hesitation. Inasmuch as “[t]here is no requirement . . . that a defendant in a lineup be surrounded by people nearly identical in appearance” (People v Chipp, 75 NY2d 327, 336 [1990], cert denied 498 US 833 [1990]), we conclude that the People sustained their initial burden of demonstrating the reasonableness of the police conduct and the absence of undue suggestiveness. Defendant, in response, failed to meet his burden “to establish that the procedure was unduly suggestive” (People v Parker, 257 AD2d 693, 694 [1999], lv denied 93 NY2d 1024 [1999]). Thus, Supreme Court properly refused to suppress the identification evidence (see People v Jackson, supra at 832; People v Parker, supra at 694).

We have considered defendant’s remaining arguments and conclude that they are meritless.

Cardona, P.J., Crew III, Carpinello and Kane, JJ., concur. Ordered that the judgment is affirmed.

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Mercure, J.

Appeal from a judgment of the Supreme Court (Lamont, J.), rendered November 29, 2001 in Albany County, upon a verdict convicting defendant of the crimes of rape in the third degree and endangering the welfare of a child.

By a three-count indictment, defendant was charged with the [821]*821crimes of rape in the first degree, rape in the third degree and endangering the welfare of a child. The charges arose from defendant’s alleged rape of a 14-year-old girl at the Red Carpet Tnn in the City of Albany. Following a jury trial, defendant was convicted of rape in the third degree and endangering the welfare of a child and sentenced to concurrent prison terms aggregating IV3 to 4 years. Defendant appeals and we now affirm.

We reject defendant’s principal argument that the pretrial identification procedure was unduly suggestive. Prior to showing the victim a photo array in which defendant was the only clean-shaven individual, Detective Gary Schultz read the victim preprinted instructions indicating, among other things, that she should be aware that facial hair could be changed. A photo array is unduly suggestive if “ ‘some characteristic of one picture draws the viewer’s attention in such a way as to indicate that the police have made a particular selection’ ” (People v Jackson, 282 AD2d 830, 832 [2001], lv denied 96 NY2d 902 [2001], quoting People v Brown, 169 AD2d 934, 935 [1991], lv denied 77 NY2d 958 [1991]). Our review of the photo array reveals that the individuals depicted appeared to be approximately the same age, had similar hair lengths and skin tones, and all wore glasses. Moreover, Schultz’s testimony at the Wade hearing indicated that the six photographs bore no markings other than the numbers one through six and the victim identified defendant without hesitation. Inasmuch as “[t]here is no requirement . . . that a defendant in a lineup be surrounded by people nearly identical in appearance” (People v Chipp, 75 NY2d 327, 336 [1990], cert denied 498 US 833 [1990]), we conclude that the People sustained their initial burden of demonstrating the reasonableness of the police conduct and the absence of undue suggestiveness. Defendant, in response, failed to meet his burden “to establish that the procedure was unduly suggestive” (People v Parker, 257 AD2d 693, 694 [1999], lv denied 93 NY2d 1024 [1999]). Thus, Supreme Court properly refused to suppress the identification evidence (see People v Jackson, supra at 832; People v Parker, supra at 694).

We have considered defendant’s remaining arguments and conclude that they are meritless.

Cardona, P.J., Crew III, Carpinello and Kane, JJ., concur. Ordered that the judgment is affirmed.

People v. Yousef, 8 A.D.3d 820, 778 N.Y.S.2d 326, 2004 N.Y. App. Div. LEXIS 8602 (N.Y. Ct. App. 2004).

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