Opinion
April 30, 1992
Appeal from the Supreme Court, New York County (Herbert I. Altman, J.).
Defendant's convictions arise out of his arrest, following an extensive police investigation, in connection with a week-long assault, murder and robbery spree involving ten separate incidents. Defendant's admitted method of operation included deliberately shooting his victims, often repeatedly, in the head or face. This was confirmed by overwhelming evidence received both at a pretrial suppression hearing and at trial.
The trial court properly denied defendant's motion for suppression of identification testimony of an eyewitness to the incident that was the subject of the trial on the alleged ground that the lineup was unduly suggestive. Although the witness in question reported to the police that defendant had worn a fleece-lined stonewashed denim jacket and stonewashed denim jeans, the witness' description also included particulars as to defendant's approximate age, height, weight, build, hair color and facial features. A visual examination of the lineup photograph indicates that the fillers were remarkably similar in appearance to defendant. While defendant wore stonewashed denim jeans during the lineup, that item of clothing is commonplace and defendant's jeans were not so dissimilar in appearance from the pants worn by the fillers (including jeans) as to call undue attention to defendant. Indeed, the police officers took pains to arrange a fair lineup representation by seating the subjects and assuring that each of the fillers wore a sweater and went shoeless, as did defendant because his fleece-lined jacket and shoes had been confiscated for evidentiary purposes. Thus, the trial court properly found the lineup to constitute a fairly representative panel (see, e.g., People v Sease, 155 A.D.2d 391, lv denied 75 N.Y.2d 818).
The trial court also properly found that defendant's various statements, given to the police and prosecutor after defendant's knowing, intelligent and voluntary waiver of the Miranda rights, were admissible. Although the interrogating officer spoke to defendant about accountability to a higher authority when he recognized that defendant was being untruthful about certain details, as the trial court noted, there is no indication of "emotional battering" and no promises or threats were made to defendant, who was at all times treated with courtesy, allowed ample opportunity for rest, and supplied with cigarettes, soft drinks and food, as requested. Considering the totality of the circumstances, including the fact that defendant directed the police (over a period of approximately 2 hours) and, approximately 7 hours later, the prosecutor (who readministered Miranda warnings before videotaping defendant's statements) to simply supply a date and location, upon which defendant then freely supplied the details of the crimes he had committed, as well as his repeated statements that he wished to tell the truth and "get it out of [his] mind", the trial court properly held that defendant's statements were voluntary (see, e.g., People v Cabrera, 170 A.D.2d 386, lv denied 78 N.Y.2d 953).
The trial court properly exercised its discretion in allowing cross-examination of defendant regarding three incidents involving assaultive behavior that occurred while defendant was off drugs and incarcerated prior to trial, as highly relevant in connection with defendant's proffered insanity defense based upon his claim that the violent criminal acts charged were out of character and the sole product of drug abuse at the time in question (see, People v Santarelli, 49 N.Y.2d 241, 249, rearg denied 49 N.Y.2d 918).
The evidence established that defendant's possession of a loaded and operable handgun, and his actions constituting assault and attempted murder, were material elements of the robbery in the first degree conviction. Thus, the sentence imposed on the robbery in the first degree conviction is modified to run concurrently with, rather than consecutively to, the sentences imposed on the attempted murder in the second degree, assault in the first degree and weapon possession counts (Penal Law § 70.25; People v Smiley, 121 A.D.2d 274, 275).
Additionally, as conceded by the People, the maximum term authorized on the attempted murder in the second degree count (a B felony) is 25 years rather than life (as imposed), and thus the sentence on that count should be modified to 8-1/3 to 25 years imprisonment (Penal Law § 70.00 [b]).
Concur — Murphy, P.J., Ellerin, Kupferman, Ross and Rubin, JJ.