Opinion
February 26, 1991
Appeal from the Supreme Court, New York County (Richard Andrias, J.).
Defendant's argument that the victim of the crime and his wife should not have been allowed to make in-court identifications is meritless. Nothing in the hearing record shows that either witness participated in a pre-trial identification procedure at which defendant was identified. Indeed the record suggests that the People did not expect the victim to make an in-court identification of his masked attackers. Defendant also fails to establish that the in-court identification testimony of the victim's two daughters should have been suppressed. The girls' encounter with defendant several days after the robbery was not police-arranged (People v Gissendanner, 48 N.Y.2d 543, 552; People v Berrios, 28 N.Y.2d 361, 367). If the girls and defendant were not strictly "known" to each other (cf., People v Collins, 60 N.Y.2d 214, 219; People v Tas, 51 N.Y.2d 915, 916), the girls surely knew who they were going to point out to the detective. (People v Paige, 154 A.D.2d 318, 319, lv denied 75 N.Y.2d 816; cf., People v Newball, 76 N.Y.2d 587, 591.)
Defendant's argument that he was coerced into implicating himself is also without merit. Considering all of the circumstances (North Carolina v Butler, 441 U.S. 369), including the period of defendant's incarceration and interrogation, his "street sense", the extent of defendant's prior cooperation, and the treatment that defendant received while in custody, defendant's will was not improperly overborne. Defendant testified at the hearing that he was carrying an attorney's business card when he was arrested, but he made no mention of the lawyer to the detectives who questioned him. And as found by the hearing court, defendant chose not to speak with his mother. The defendant was asked to cleanse his soul, and told that his mother and girlfriend faced grave consequences if they offered false alibis on his behalf, but defendant was not forced to choose between confessing and hurting his loved ones. Appeals to conscience and to the truth are not forbidden, and in the circumstances presented the detective, rather than improperly inducing defendant's statements, was "midwife to a declaration naturally born of remorse, or relief, or desperation, or calculation." (Culombe v Connecticut, 367 U.S. 568, 576.)
Concur — Milonas, J.P., Ellerin, Wallach, Kassal and Smith, JJ.