Opinion
September 24, 1990
Appeal from the Supreme Court, Queens County (Chetta, J.).
Ordered that the judgment is affirmed.
The defendant was arrested after one victim of a sexual assault positively identified him as her assailant. He subsequently made oral and videotaped statements implicating himself in the sexual assaults of three other women. On appeal, the defendant's primary contention is that his confession was the result of psychological coercion by the police, who allegedly exploited his vulnerability as a mentally retarded youth. Upon our review of the record of the Huntley hearing, however, we perceive no basis to overturn the hearing court's finding that the statements in question were freely and voluntarily given, and were not the product of coercion. Moreover, while it was stipulated at the hearing that the defendant has an intelligence quotient of 74, the record further supports the hearing court's conclusion that the defendant, no novice to the criminal justice system, fully understood the immediate import of Miranda warnings and was thus able to make an effective waiver (see, People v. Williams, 62 N.Y.2d 285; People v. Zuluaga, 148 A.D.2d 480; People v. Avilez, 121 A.D.2d 391, 392; People v. Dorsey, 118 A.D.2d 653).
Additionally, the Supreme Court did not improvidently exercise its discretion by denying the application to sever various counts of the indictment, which charged the defendant with having robbed and sexually assaulted five women over a one-year period. Contrary to the defendant's contention, we find no basis in the record to support the assertion that he suffered actual prejudice as a result of the denial of the severance application (see, People v. Martin, 141 A.D.2d 854; People v. Barksdale, 140 A.D.2d 531, 532). In this regard, we note that the defendant was identified as the perpetrator of four of the incidents by at least one victim of each crime (see, People v. Martin, supra; People v. Hoke, 96 A.D.2d 677; cf., People v. Gilliam, 112 A.D.2d 475), and that "`"[p]roof of each crime was separately presented, uncomplicated and easily segregable in the jury's mind"'" (People v. Martin, supra, at 854, quoting from People v. Mack, 111 A.D.2d 186, 188).
The defendant's final contention that the trial court erred in refusing to reopen the Wade hearing at an advanced stage of the trial in order to permit him to call an identification witness, is without merit. Absent special circumstances which do not appear at bar, the defendant had no right to call this witness at the hearing (see, People v. Chipp, 75 N.Y.2d 327; cf., People v Ocasio, 134 A.D.2d 293, 294). In any event, the defendant's application to reopen the hearing was predicated on the fact that an investigating police officer might have indicated to the witness that the defendant, whose photograph she had selected, would appear in a subsequent lineup, and it is settled that that fact alone does not render the lineup impermissibly suggestive (see, People v. Rodriguez, 64 N.Y.2d 738; People v. Wiredo, 138 A.D.2d 652; People v. Hammond, 131 A.D.2d 876, 878). We would note that the trial court erred in making a determination as to independent source based on the trial testimony of the witness who did not testify at the Wade hearing (see, People v. Riley, 70 N.Y.2d 523, 531-532; People v. Ryan, 147 A.D.2d 508, 509). However, this error is harmless since the lineup was not suggestive. Kunzeman, J.P., Eiber, Sullivan and Miller, JJ., concur.