People v. Hall

Nov 15, 1991
Versions:177 A.D.2d 951
577 N.Y.S.2d 996
1991 N.Y. App. Div. LEXIS 15680

Judgment unanimously affirmed. Memorandum: There is no merit to defendant’s contention that pretrial identifications of him from photograph arrays and from a lineup were unduly suggestive. Although color photographs and black and white photographs were used in the photographic identification procedure, the manner of their use did not single out the defendant. Four arrays were utilized. One array consisted entirely of color photographs, and the remaining three arrays included only black and white photographs. Defendant’s picture appeared in a black and white array. Further, the fill-ins used in the photo arrays and in the lineup procedure were sufficiently similar to defendant in appearance that there was no reasonable possibility that the attention of the crime victims would be drawn to him as the suspect chosen by the police (see, People v Chipp, 75 NY2d 327, cert denied — US —, 111 S Ct 99; People v Ballew, 161 AD2d 1138, lv denied 76 NY2d 852; People v Rawlings, 159 AD2d 655, lv denied 76 NY2d 741).

While we agree with defendant that it was improper for the court, sua sponte, to reopen the combined Wade-Huntley hearing to receive evidence bearing on whether certain pretrial identification procedures were unduly suggestive and whether defendant’s statement was the fruit of an improper arrest (see, People v Havelka, 45 NY2d 636, 643; People v Bryant, 37 NY2d 208), the error does not require reversal. The court ultimately suppressed defendant’s statement, and defendant was acquitted of those charges involved in the pretrial identifications of defendant in local criminal courts. No evidence regarding a photograph identification procedure conducted on February 1, 1989 was presented at the reopened portion of the hearing or at trial, and sufficient evidence was presented at the initial hearing to support a finding that the lineup proce*952dure was not unduly suggestive. As a result, defendant was not prejudiced by the court’s improvident decision to reopen the hearing.

We have examined defendant’s other contentions and find them to be without merit. (Appeal from Judgment of Erie County Court, Rogowski, J.—Robbery, 1st Degree.) Present— Doerr, J. P., Boomer, Pine, Balio and Lawton, JJ.