164 A.D.2d 920 | N.Y. App. Div. | 1990
Appeal by the People from an order of the Supreme Court, Kings County (Slavin, J.), dated April 27, 1989, which, after a hearing, granted that branch of the defendant’s omnibus motion which was to suppress identification evidence.
Ordered that the order is reversed, on the law, that branch of the defendant’s omnibus motion which was to suppress identification evidence is denied, and the matter is remitted to the Supreme Court, Kings County, before a different Justice, for further proceedings consistent herewith.
We disagree with the Supreme Court’s finding that the lineup in this case, a photograph of which we have examined, was unduly suggestive because two of the lineup participants were white while the defendant was Hispanic, and because the defendant occupied the same position in the lineup as he previously did in a photographic array, which has also been