Opinion
July 18, 1990
Appeal from the Supreme Court, Kings County (Greenberg, J.).
Ordered that the judgment is affirmed.
On March 27, 1986, the defendant employed a ruse to gain entry to an apartment in Brooklyn and, after drawing a gun, menaced and coerced the two women therein for approximately 30 minutes. After leaving the apartment, the defendant encountered a woman in the street and asked if she would like to care for his parrot. The defendant forced the woman to the rooftop of a building and raped and sexually abused her for approximately one hour.
The defendant was not entitled to counsel at the lineup. "A person merely suspected of having committed a crime is not entitled to have counsel present during investigatory corporeal identification procedures (People v. Hawkins, 55 N.Y.2d 474, 487, cert denied 459 U.S. 846; People v. Cunningham, 110 A.D.2d 708, 709)" (People v. Quick, 158 A.D.2d 625, 626).
The court correctly determined that although two witnesses saw the defendant sitting alone in a holding cell before viewing the lineup, the suppression of their in-court identifications of the defendant was not warranted in light of the independent source each had for identifying him. "Accidental or unarranged showups at the police station are not unnecessarily or impermissibly suggestive when they are unavoidable and not attributable to any misconduct on the part of the police or the prosecutor (see, People v. Davis, 134 A.D.2d 510; People v. Decker, 134 A.D.2d 511; People v. Hampton, 129 A.D.2d 736; People v. Musial, 120 A.D.2d 682, lv denied 68 N.Y.2d 815; People v. Lopez, 118 A.D.2d 873, lv denied 68 N.Y.2d 670)" (People v. Sims, 150 A.D.2d 402, 404). Although the leading of the witnesses "past defendant's cell was apparently unintentional, it was clearly the product of questionable police practice and was unduly suggestive even if purely accidental" (People v. Smalls, 112 A.D.2d 173, 174). However, "even if an identification is the product of a suggestive showup, a witness will nonetheless be permitted to identify the defendant in court if that identification is based on an independent source (People v. Adams, [ 53 N.Y.2d 241,] 251). Such an independent source supports the [witnesses'] in court identification[s] of the defendant" (People v. Smalls, supra, at 174). One witness saw and spoke to the defendant on her way out of her building in a well-lit hallway for approximately 3 to 5 minutes. During the conversation, the witness was about two feet from the defendant and saw his face clearly. Once she left the building, she had an unobstructed view of the defendant's face in the sunlight on a bright day. The rape victim also had an ample opportunity to observe the defendant face-to-face on a rooftop on a clear, sunny day in an incident which lasted approximately an hour.
The defendant's contention that the lineup identifications were tainted because the other men in the lineup were taller, heavier, and younger than he is based upon trial testimony. Since the propriety of a denial of a motion to suppress must be judged on the evidence before the suppression court, the defendant's argument rests upon improper grounds and must be rejected (see, People v. Smith, 134 A.D.2d 382). In any event, "`there is no requirement that a defendant in a lineup be surrounded by individuals nearly identical in appearance'" (People v. Wiley, 137 A.D.2d 735; see, People v. Rodriguez, 124 A.D.2d 611). As long as there is a sufficient degree of resemblance between the fillers and the defendant, the constitutional proscription against unduly suggestive identification procedures will be satisfied (see, People v. Thompson, 143 A.D.2d 858; People v Allah, 158 A.D.2d 605; see also, People v. Chipp, 75 N.Y.2d 327).
Viewing the evidence in the light most favorable to the People (see, People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we find that the verdict of guilt was not against the weight of the evidence.
The defendant's sentence was not excessive (see, People v Suitte, 90 A.D.2d 80).
We have considered the defendant's remaining contentions, including those raised in his supplemental pro se brief, and find them to be without merit. Thompson, J.P., Rubin, Rosenblatt and Miller, JJ., concur.