Opinion
June 5, 1989
Appeal from the County Court, Suffolk County (Weissman, J.).
Ordered that the judgment is affirmed.
Considering, as we must, the totality of circumstances surrounding the lineup identification (see, People v. Green, 143 A.D.2d 768; People v. Rodriguez, 124 A.D.2d 611), we find that the lineup was not impermissibly suggestive. The fillers in the lineup were sufficiently similar in appearance to the defendant so that no characteristic or visual clue would have oriented the viewer toward the defendant as a perpetrator of the crimes charged (see, e.g., People v. Nurse, 142 A.D.2d 738; People v Mason, 123 A.D.2d 720, lv denied 69 N.Y.2d 714). The law does not require that lineup fillers possess physical characteristics identical to those of the defendant but only that the fillers possess reasonably similar characteristics (see, e.g., People v Stephens, 143 A.D.2d 692; People v. Fisher, 143 A.D.2d 1037).
Equally without merit is the defendant's contention that the evidence adduced at trial was legally insufficient to support his burglary and assault convictions. Viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620), we find, based on the complainant's ability to see the defendant as he fled her home and her subsequent lineup identification, that the evidence was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. We reject the defendant's contention that the evidence was legally insufficient to prove intent because the People failed to prove beyond a reasonable doubt that the jewelry found in the defendant's possession upon his arrest belonged to the complainant. The element of intent is subjective and, thus, may be inferred from the defendant's conduct and from the surrounding circumstances (see, People v. Mackey, 49 N.Y.2d 274; People v Miller, 149 A.D.2d 737; People v. Rodriquez, 144 A.D.2d 501). In the matter before us a reasonable juror could infer the defendant's criminal intent from the signs of forced entry, i.e., the back door which had been taken off its hinges, and the evidence that the complainant's jewelry box had been ransacked and items taken therefrom. Proof of possession of the fruits of the crime was not required to sustain the burglary conviction.
We further reject the defendant's claim that the evidence adduced was legally insufficient to establish that the police officer whom the defendant attacked suffered physical injury within the meaning of Penal Law § 10.00 (9) and § 120.05 (3), i.e., impairment of physical condition or substantial pain. The police officer testified that as a result of the defendant punching him his nose became reddened and bloody and he was in "[a] lot of pain" which caused him to be absent from work for two days. The pain persisted for a few days. The injury suffered in the attack prompted the police officer to seek medical treatment at a local hospital where his nose was X-rayed. The record supports the jury's finding that the police officer suffered the requisite physical injury (see, People v. Greene, 70 N.Y.2d 860; People v. Bogan, 70 N.Y.2d 860, rearg denied 70 N.Y.2d 951; People v. Esquilin, 141 A.D.2d 838; People v. Singleton, 140 A.D.2d 388).
Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (CPL 470.15).
Nor do we find the trial court committed reversible error in compelling the defendant to appear in court for identification purposes or in ordering that he be restrained during his appearance. Although a defendant may waive his right to be present at the trial (see, People v. Epps, 37 N.Y.2d 343, cert denied 423 U.S. 999), the People may demand that he be produced in the courtroom for identification by the prosecution witnesses (see, People v. Jackson, 135 A.D.2d 831; People v. Rheubottom, 131 A.D.2d 790, lv denied 70 N.Y.2d 716). The record amply demonstrates a basis for ordering that the defendant be brought into the courtroom in leg irons. Despite the trial court's admonishments to the defendant that it would be in his best interest to cooperate and appear in court without restraints, he persisted in his violent outbursts and verbal abuse. Eventually eight court officers were required to produce the defendant. Under the circumstances, the restraints placed upon the defendant were consistent with reasonable security considerations and that security measure does not mandate reversal (see, People v Tedesco, 143 A.D.2d 155, 159).
We have considered the defendant's remaining contentions and find them to be without merit. Thompson, J.P., Brown, Lawrence and Rubin, JJ., concur.