Opinion
September 18, 1990
Appeal from the Supreme Court, New York County, Robert Haft, J.
An identifying witness is generally not subject to compulsory process at the behest of the defendant unless "the hearing evidence raises substantial issues as to the constitutionality of the lineup, the resolution of which could not be properly resolved without testimony from the identification witness." (People v. Chipp, 75 N.Y.2d 327, 338.) The testimony at the Wade hearing showed that the photographs in the array were marked with the county and date of arrest. However, the fact that two suspects had been previously arrested in Brooklyn hardly precluded their having committed the instant crime. Moreover, none of the photographs was older than four years. Under these circumstances, even if the complainant had noticed these markings, they could not have influenced his selection of the defendant's photo. (Cf., People v. Adams, 115 A.D.2d 542 [dated photos rendered the array suggestive where one photo was dated 14 years before crime committed].) Thus, defendant failed to demonstrate that the hearing evidence raised an issue concerning the suggestiveness of the array sufficient to warrant permitting him to call the complainant as a witness. Defendant also failed to raise a substantial issue concerning suggestiveness arising from any remarks made to the complainants by police officers prior to the lineups. Both officers testified to the substance of their conversations with the complainants, and there is no indication that these conversations were in any way suggestive.
The lineups in this case constituted a representative sample and the court's finding that they were not suggestive was proper. There is no requirement that a defendant in a lineup must be surrounded by people nearly identical in appearance. (People v Sease, 155 A.D.2d 391.)
Finally, in view of defendant's prior felony conviction, his use of a gun and the fact that the complainants were threatened with death, the sentence is not excessive.
Concur — Ross, J.P., Rosenberger, Kassal, Wallach and Rubin, JJ.