People v. Benjamin

Nov 28, 1989
Versions:155 A.D.2d 375
548 N.Y.S.2d 6
1989 N.Y. App. Div. LEXIS 14583

— Judgment of the Supreme Court, New York County (Franklin Weissberg, J.), rendered May 31, 1988, which convicted defendant, after a jury trial, of one count each of robbery in the first and second degrees, and criminal possession of a weapon in the second and third degrees, and sentenced him to concurrent prison terms of 9 to 18 years, 4 to 8 years (two terms) and 3 to 6 years, is unanimously affirmed.

There is no constitutional requirement that a defense-requested in-court lineup be conducted, as such request is addressed to the sound discretion of the court. (Sims v Sullivan, 867 F2d 142, 145 [2d Cir 1989]; People v Pearce, 48 NY2d 897 [1979]; People v Grady, 133 Misc 2d 211, 227 [Sup Ct, Bronx County 1986].)

We find that the trial court did not abuse its discretion in denying defendant’s request to preclude the witness from making an in-court identification while defendant was seated at defense counsel’s table or, in the alternative, to conduct an in-court identification while he sat among a group of people in the audience. The reliability of the complaining witness’s *376identification testimony concerning defendant was never sufficiently cast into doubt. The witness’s out-of-court identification was spontaneous and in no way tainted by police action. Moreover, the witness’s in-court identification was based on his ability to view defendant for several minutes and in good lighting during the robbery and flight therefrom from a short distance away. (See, People v Perez, 139 AD2d 460 [1st Dept 1988], affd 74 NY2d 637 [1989].) Concur — Kupferman, J. P., Milonas, Kassal and Ellerin, JJ.