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holding that, during a Wade hearing, the court "properly prevented defense counsel from cross-examining the People's witnesses regarding the eyewitnesses' descriptions of the robber, finding that the issue before it was whether the array was unduly suggestive, and not whether the photographs matched the description of the perpetrator-an issue more properly left for trial"
Summary of this case from Sims v. ArtusOpinion
April 18, 1994
Appeal from the County Court, Orange County (Pano Z. Patsalos, J.).
Ordered that the judgment is affirmed.
Following a Wade hearing, the court properly found that the People met their burden of demonstrating that the police did not use any impermissible procedures in conducting the photographic identifications, and that the array itself was not suggestive. The photographic spread featured six black-and-white pictures of white males, all approximately 30 years old, with shaggy hair and mustaches. Contrary to the defendant's suggestion, there is no requirement that he be surrounded by individuals identical to himself; the fact that he was slightly heavier than the others, and that his mustache was somewhat thinner, does not warrant a finding of suggestiveness (see, e.g., People v Chipp, 75 N.Y.2d 327, cert denied 498 U.S. 833; People v Waters, 195 A.D.2d 613; People v Joseph, 191 A.D.2d 646). The court therefore properly prevented defense counsel from cross-examining the People's witnesses regarding the eyewitnesses' descriptions of the robber, finding that the issue before it was whether the array was unduly suggestive, and not whether the photographs matched the description of the perpetrator — an issue more properly left for trial (cf., People v Pino, 116 A.D.2d 601; cf., People v Rudan, 112 A.D.2d 255).
The court also correctly denied the defendant's application to subpoena the civilian identification witnesses to testify at the Wade hearing, because the People had met their burden of going forward, and there was no proof that the identification procedures employed were suggestive (see, People v Chipp, 75 N.Y.2d 327, cert denied 498 U.S. 833, supra; People v Mercado, 198 A.D.2d 380), or that the hearing evidence was "notably incomplete" (People v Harvall, 196 A.D.2d 553, citing People v Sokolyansky, 147 A.D.2d 722).
Finally, there is no merit to the defendant's contention that the Hearing Judge should have recused himself because of past frictions with the Orange County Legal Aid Society. Where, as here, no legal ground for disqualification was present (see, Judiciary Law § 14), it is up to the conscience and discretion of the court to determine whether or not it should recuse itself in a given case (see, People v Moreno, 70 N.Y.2d 403; People v Webb, 159 A.D.2d 289). The hearing court found that no prejudice existed, and properly refused to recuse itself. The defendant is unable to identify how the denial of his recusal motion might have affected the outcome of the case (cf., Matter of Johnson v Hornblass, 93 A.D.2d 732). Balletta, J.P., Rosenblatt, Ritter and Friedmann, JJ., concur.