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People v. Spero

Appellate Division of the Supreme Court of New York, Second Department
Apr 22, 1991
172 A.D.2d 782 (N.Y. App. Div. 1991)

Opinion

April 22, 1991

Appeal from the Supreme Court, Kings County (Fertig, J.).


Ordered that the judgment is affirmed.

We do not agree with the defendant's contention that the complainant's viewing of an allegedly suggestive photographic array tainted the lineup identification made by the complainant four days later. The evidence adduced at the hearing reveals that the complainant was unable to positively identify the person she selected from the photographic array as one of the men who robbed her. However, the evidence establishes that at the time of the lineup, the complainant positively identified the defendant as the person who held the knife to her during the robbery based upon her observations at the time of the crime and not based upon her previous equivocal selection from the photographic array. The hearing court's decision to credit the complainant's testimony was not clearly erroneous and is entitled to great weight on appeal, and we find no reason to disturb it (see, People v. Gairy, 116 A.D.2d 733, 734, citing People v Prochilo, 41 N.Y.2d 759). Under these circumstances, we agree with the hearing court's determination that the lineup identification was not tainted by the prior photographic identification procedure (see, People v. Allah, 158 A.D.2d 605; see also, People v. English, 75 A.D.2d 981).

Although the police officer improperly testified as to the identification made by the complainant at the lineup (see, People v. Johnson, 57 N.Y.2d 969, 970; People v. Larsen, 157 A.D.2d 672), the trial court's immediate curative instructions were sufficient to dispel whatever prejudicial effect this testimony may have had (see, People v. Jenkins, 122 A.D.2d 74). Thompson, J.P., Brown, Harwood and Balletta, JJ., concur.


Summaries of

People v. Spero

Appellate Division of the Supreme Court of New York, Second Department
Apr 22, 1991
172 A.D.2d 782 (N.Y. App. Div. 1991)
Case details for

People v. Spero

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. LAWRENCE SPERO…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Apr 22, 1991

Citations

172 A.D.2d 782 (N.Y. App. Div. 1991)
569 N.Y.S.2d 155

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