Opinion
February 10, 2000
Judgment, Supreme Court, New York County (Richard Carruthers, J.), rendered September 30, 1996, convicting defendant, after a jury trial, of robbery in the second degree, and sentencing him to a term of 1 1/2 to 4 1/2 years, unanimously affirmed.
Penny Rosenberg for the Respondent.
Frank Brady for the Defendant-Appellant.
ROSENBERGER, J.P., ELLERIN, WALLACH, SAXE, JJ.
Defendant's motion to suppress a lineup identification as tainted by a prior single-photo identification was properly denied. Shortly before the lineup, a newly assigned detective looked through the case file for the first time and unexpectedly discovered a photograph of defendant. The complainant, who was seated nearby, caught a momentary glimpse of defendant's photo and recognized it as the same photo he had previously selected from a book containing numerous photos. The detective immediately covered the photo and directed the complainant to disregard it. We conclude that this inadvertent single-photo identification was "unavoidable" (People v. Clark, 85 N.Y.2d 886, 889). In any event, from all the circumstances, and particularly from the strong evidence of independent source adduced at the hearing, the single-photo identification did not render the lineup unduly suggestive (see, People v. Perez, 221 A.D.2d 169, lv denied 87 N.Y.2d 976).
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.