PEOPLE v. LATHROP (1997)

Defendant pleaded guilty to assault in the first degree, arising out of an incident in which he shot a man following an argument.   He contends that County Court erred in denying his motion to suppress identification testimony that was the unattenuated by-product of two unduly suggestive identification procedures.

 The record supports the suppression court's determination that the identification of defendant by one witness from a single photograph was confirmatory in nature.   The witness testified that he had known a person nicknamed “Bunnie” for a year, and the court properly concluded that the photograph of defendant was shown to the witness merely to confirm that the person in the photograph was the same person that the witness was referring to as “Bunnie”.   That confirmatory identification comes within the “known to one another” exception to the general rule (see, People v. Rodriguez, 79 N.Y.2d 445, 449, 583 N.Y.S.2d 814, 593 N.E.2d 268;  People v. Collins, 60 N.Y.2d 214, 219, 469 N.Y.S.2d 65, 456 N.E.2d 1188;  People v. Kahley, 214 A.D.2d 960, 961, 627 N.Y.S.2d 189).   The record also supports the court's determination that the photo array shown to two other witnesses was not unduly suggestive.   The fact that defendant was the only man in the six-man photo array who was not wearing a shirt does not render the identification procedure unduly suggestive (see, People v. Burns, 186 A.D.2d 1015, 1016, 590 N.Y.S.2d 785, lv. denied 81 N.Y.2d 837, 595 N.Y.S.2d 736, 611 N.E.2d 775;  People v. Tedesco, 143 A.D.2d 155, 156, 531 N.Y.S.2d 609, lv. denied 73 N.Y.2d 860, 537 N.Y.S.2d 506, 534 N.E.2d 345;  People v. Mattocks, 133 A.D.2d 89, 90, 518 N.Y.S.2d 436, lv. denied 70 N.Y.2d 801, 522 N.Y.S.2d 119, 516 N.E.2d 1232).

Judgment unanimously affirmed.

MEMORANDUM: