People v. Lind

18 Citing cases

  1. People v. Cole

    150 A.D.3d 1476 (N.Y. App. Div. 2017)   Cited 17 times

    "Photo arrays are considered unduly suggestive and improper if they are arranged in a manner which creates a substantial likelihood that the defendant would be singled out for identification. While the physical characteristics of all the people included in an array must be similar, so that the viewer's attention is not particularly drawn to [the] defendant, there is no requirement that [the] defendant be surrounded by people nearly identical in appearance" (People v. Lind, 20 A.D.3d 765, 766–767, 798 N.Y.S.2d 574 [2005] [internal quotation marks, brackets and citations omitted], lv. denied 5 N.Y.3d 830, 804 N.Y.S.2d 44, 837 N.E.2d 743 [2005] ; see People v. Pleasant, 149 A.D.3d 1257, 1257, 51 N.Y.S.3d 693 [2017] ; People v. Smith, 122 A.D.3d 1162, 1163, 997 N.Y.S.2d 534 [2014] ). Although the People bear the burden of "establish[ing] the reasonableness of the police conduct and the lack of any undue suggestiveness in a pretrial identification procedure, it is the defendant who bears the ultimate burden of proving that the procedure was unduly suggestive" (People v. Smith, 122 A.D.3d at 1163, 997 N.Y.S.2d 534 [internal quotation marks and citations omitted]; see People v. Al Haideri, 141 A.D.3d 742, 743, 36 N.Y.S.3d 244 [2016], lv. denied ––– N.Y. 3d ––––, 45 N.Y.S.3d 377, 68 N.E.3d 106 [Oct. 11, 2016] )

  2. PEOPLE v. LIND

    837 N.E.2d 743 (N.Y. 2005)

    September 26, 2005. Appeal from the 3d Dept: 20 AD3d 765 (Rensselaer). Application in criminal case for leave to appeal denied.

  3. People v. Jones

    215 A.D.3d 1123 (N.Y. App. Div. 2023)   Cited 11 times

    Although it was his testimony that he was not involved in the robbery, the jury was free to accept certain aspects of his testimony while rejecting others (seePeople v. Gage, 259 A.D.2d 837, 839–840, 687 N.Y.S.2d 202 [3d Dept. 1999], lv denied 93 N.Y.2d 924, 693 N.Y.S.2d 507, 715 N.E.2d 510 [1999] ). In that same vein, any purported inconsistencies between Villanueva's and Yahia's versions of the events presented credibility questions for the jury (seePeople v. Hanzlik, 95 A.D.3d at 602, 945 N.Y.S.2d 229 ; People v. Lind, 20 A.D.3d 765, 767, 798 N.Y.S.2d 574 [3d Dept. 2005], lv denied 5 N.Y.3d 830, 804 N.Y.S.2d 44, 837 N.E.2d 743 [2005] ). Regarding defendant's reliance upon our decision in People v. Green , 194 A.D.3d 1106, 146 N.Y.S.3d 360 (3d Dept. 2021), we find such dependence to be misplaced, as that case did not involve accomplice testimony.

  4. People v. Lipton

    162 A.D.3d 1070 (N.Y. App. Div. 2018)   Cited 3 times

    The evidence adduced at the Wade hearing (see United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 ) established that the pretrial identification procedures were not unduly suggestive, as the persons depicted in the computer-arranged photographic arrays were sufficiently similar in appearance to the defendant (see People v. Allen, 118 A.D.3d 902, 903, 987 N.Y.S.2d 445 ; People v. Lago, 60 A.D.3d 784, 784, 875 N.Y.S.2d 178 ). The position of the defendant's photograph in the array did not render the procedure unduly suggestive (see People v. Lind, 20 A.D.3d 765, 767, 798 N.Y.S.2d 574 ; cf. People v. Bernier, 245 A.D.2d 137, 137–138, 666 N.Y.S.2d 161 ; People v. Snow, 237 A.D.2d 118, 118, 654 N.Y.S.2d 744 ). Contrary to the defendant's contention, the County Court's Sandoval ruling (see People v. Sandoval, 34 N.Y.2d 371, 376, 357 N.Y.S.2d 849, 314 N.E.2d 413 ) was an appropriate exercise of discretion.

  5. People v. Quintana

    159 A.D.3d 1122 (N.Y. App. Div. 2018)   Cited 24 times

    All six men were wearing black shirts, occupied the same amount of space in the photos and were positioned at nearly the same angle and distance from the camera. Although defendant's neck tattoo was partially visible, none of defendant's physical attributes " ‘jumped out at the viewer based on the way the array was organized,’ thereby signaling that he was the [individual in question]" ( People v. Cole, 150 A.D.3d at 1478, 55 N.Y.S.3d 766, quoting People v. Lind, 20 A.D.3d 765, 767, 798 N.Y.S.2d 574 [2005], lv denied 5 N.Y.3d 830, 804 N.Y.S.2d 44, 837 N.E.2d 743 [2005] ; seePeople v. Chipp, 75 N.Y.2d at 336, 553 N.Y.S.2d 72, 552 N.E.2d 608 ; People v. Smart, 142 A.D.3d 513, 514, 36 N.Y.S.3d 197 [2016], affd 29 N.Y.3d 1098, 58 N.Y.S.3d 896, 81 N.E.3d 379 [2017] ; People v. Spence, 92 A.D.3d 905, 905, 938 N.Y.S.2d 622 [2012] ). Indeed, there is no requirement that the physical characteristics, including skin tone, of the six males depicted in the photo array be "nearly identical" to defendant ( People v. Chipp, 75 N.Y.2d at 336, 553 N.Y.S.2d 72, 552 N.E.2d 608 ; seePeople v. Casanova, 152 A.D.3d at 878, 60 N.Y.S.3d 503 ; People v. Hicks, 110 A.D.3d 1488, 1489, 972 N.Y.S.2d 800 [2013], lv denied 22 N.Y.3d 1156, 984 N.Y.S.2d 640, 7 N.E.3d 1128 [2014] ; People v. Spence, 92 A.D.3d at 905, 938 N.Y.S.2d 622 ).

  6. People v. DeAngelo

    136 A.D.3d 1119 (N.Y. App. Div. 2016)   Cited 13 times

    Defendant testified at the Huntley hearing that he was “in pain,” “drowsy” and in “a dream state” during his interrogation, but County Court specifically found his testimony to be incredible. Viewing the totality of the circumstances, and according great weight to County Court's factual findings and credibility determinations (see People v. Lind, 20 A.D.3d 765, 766, 798 N.Y.S.2d 574 2005, lv. denied 5 N.Y.3d 830, 804 N.Y.S.2d 44, 837 N.E.2d 743 2005 ), we conclude that defendant's statement was knowing and voluntary (see People v. Legere, 81 A.D.3d 746, 748, 916 N.Y.S.2d 187 2011; People v. May, 263 A.D.2d 215, 219, 702 N.Y.S.2d 393 2000, lv. denied 94 N.Y.2d 801, 710 N.Y.S.2d 7, 731 N.E.2d 624 2001 ).Defendant's contention that his plea was not knowing and voluntary was not preserved by an appropriate postallocution motion and, inasmuch as defendant did not make any statements during the allocution that were inconsistent with his guilt or the voluntariness of his plea, the narrow exception to the preservation requirement is inapplicable (see People v. Pickett, 128 A.D.3d 1275, 1276, 9 N.Y.S.3d 737 2015, lvs. denied 26 N.Y.3d 930, 933, 17 N.Y.S.3d 96, 38 N.E.3d 842 2015; People v. Buie, 128 A.D.3d 1281, 1281, 10 N.Y.S.3d 351 2015 ).

  7. People v. Matthews

    101 A.D.3d 1363 (N.Y. App. Div. 2012)   Cited 35 times

    The photo array contains six color, close-up photographs with similar backgrounds of black males, all with the same general facial features and short cut hair and of a seemingly similar age; five, including defendant, are wearing a T-shirt, all but one have a skin tone that appears similar to that of defendant, and five of the six, including defendant, have similar facial hair. There is no requirement that the fill-in photographs depict people “nearly identical [to defendant's photograph]” ( People v. Chipp, 75 N.Y.2d at 336, 553 N.Y.S.2d 72, 552 N.E.2d 608;see People v. Lind, 20 A.D.3d 765, 767, 798 N.Y.S.2d 574 [2005],lv. denied5 N.Y.3d 830, 804 N.Y.S.2d 44, 837 N.E.2d 743 [2005] ).

  8. People v. Byron

    85 A.D.3d 1323 (N.Y. App. Div. 2011)   Cited 10 times

    County Court clearly discredited this testimony. Based on the totality of the circumstances and deferring to the court's credibility assessments, we find ample support in the record for the court's determination that defendant's statement was voluntary, and we find no reason to disturb it ( see People v Button, 56 AD3d 1043, 1044, lv dismissed 12 NY3d 781; People v hind, 20 AD3d 765, 766, lv denied 5 NY3d 830; People v Meissler, 305 AD2d 724, 725, lv denied 100 NY2d 644). Nor do we find merit to defendant's challenges to the sufficiency and weight of the evidence.

  9. People v. Pouliot

    64 A.D.3d 1043 (N.Y. App. Div. 2009)   Cited 28 times

    As a factual matter, we do not find that Verne's equivocal responses to defendant's questions about whether he was going to jail constituted a promise that created a substantial risk that he might falsely incriminate himself, so as to render his statement involuntary ( see CPL 60.45 [b] [i]; see also People v McLean, 59 AD3d at 862-863). Also relevant is defendant's past experience with the criminal justice system; he was at the time already a risk level three sex offender based upon a 2002 third degree rape conviction ( see People v McLean, 59 AD3d at 863; People v Lind, 20 AD3d 765, 766, lv denied 5 NY3d 830). Given the totality of these circumstances, including the overall short duration of the questioning and the absence of any evidence that it was done in an unduly coercive or threatening manner, we are unpersuaded that the police conduct was such as to "overbear . . . defendant's will" ( People v Bridges, 16 AD3d 911, 912, lv denied 4 NY3d 884; see People v Mateo, 2 NY3d at 414-415; People v McLean, 59 AD3d at 864) or to "undermin[e] his ability to make a choice whether or not to make a statement" (CPL 60.45 [a]). Thus, we find that the People met their burden of demonstrating beyond a reasonable doubt that defendant's statements were voluntary ( see People v Rosa, 65 NY2d 380, 386; People v Brown, 46 AD3d 1128, 1129).

  10. People v. Kindred

    60 A.D.3d 1240 (N.Y. App. Div. 2009)   Cited 15 times

    In contrast, the defense pointed out inconsistencies in the witnesses' testimony and the lack of forensic testing on defendant or the alleged weapon, and defendant testified that he was not involved in the incident. Giving deference to the jury's credibility determinations, however, we find that the jury's verdict was not against the weight of the evidence ( see People v Romero, 7 NY3d 633, 643-644; People v Young, 51 AD3d 1055, 1056, lv denied 11 NY3d 796; People v Zindle, 48 AD3d 971, 973, lv denied 10 NY3d 846; People v hind, 20 AD3d 765, 767, lv denied 5 NY3d 830). County Court did not err in admitting evidence of uncharged crimes.