PEOPLE v. WEBSTER (2021)

Judgment, Supreme Court, New York County (Michael J. Obus, J. at suppression hearing;  Daniel P. FitzGerald, J. at jury trial and sentencing), rendered October 20, 2017, convicting defendant of two counts of robbery in the first degree, and sentencing him, as a second felony offender, to consecutive terms of 10 years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of directing that the sentences run concurrently with each other, and otherwise affirmed.

The court properly denied defendant's motion to suppress identification testimony.  The lineups were not unduly suggestive under all the circumstances (see People v. Chipp, 75 N.Y.2d 327, 336, 553 N.Y.S.2d 72, 552 N.E.2d 608 [1990], cert denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70 [1990]).  The generic grey hooded sweatshirt defendant wore, which matched part of the description given by one of the robbery victims, “was not so distinctive as to be capable of influencing the identification” (People v. Allen, 257 A.D.2d 397, 397, 685 N.Y.S.2d 171 [1st Dept. 1999] lv. denied 93 N.Y.2d 1013, 697 N.Y.S.2d 572, 719 N.E.2d 933 [1999]).  The sweatshirt was a common article of clothing (see People v. Gilbert, 295 A.D.2d 275, 745 N.Y.S.2d 155 [1st Dept. 2002], lv denied 99 N.Y.2d 558, 754 N.Y.S.2d 210, 784 N.E.2d 83 [2002]), and most of the lineup fillers wore sweatshirts, in various colors.  The more significant part of the clothing description was a distinctive colorful jacket, which both victims had described the robber as wearing, and which defendant did not wear in the lineups.  A review of photos of the lineups reveals that all the participants were reasonably similar in appearance, and that any differences in height, weight or apparent age between defendant and the others were not so noticeable as to create a substantial likelihood that defendant would be singled out for identification.  Likewise, any facial scarring of defendant is not readily noticeable in the lineup photos, and no such scarring was included in either victim's description of the robber.

The trial court providently exercised its discretion in denying defendant's motion to reopen the suppression hearing (see People v. Clark, 88 N.Y.2d 552, 555, 647 N.Y.S.2d 479, 670 N.E.2d 980 [1996]).  At trial, the victim of the first robbery could not recall whether he had seen the participants walk in, thereby permitting him to see height differences, before they sat down.  At the hearing, the detective definitively recalled that the participants were already seated when the victim viewed the lineup, and that she banged on the wall between the viewing and lineup rooms so that the participants would look forward and hold their cards properly before the detective lifted the screen so the victim could see them.  We conclude that the first victim's trial testimony would not have “materially affected” the suppression ruling (People v. Cepeda, 48 A.D.3d 294, 295, 851 N.Y.S.2d 505 [1st Dept. 2008], lv denied 10 N.Y.3d 957, 863 N.Y.S.2d 141, 893 N.E.2d 447 [2008]).  Moreover, defendant could have discovered this alleged fact with reasonable diligence before the suppression hearing (CPL 710.40[4]), because a representative from defense counsel's office was in the viewing room during the lineup (People v. Cepeda, 48 A.D.3d at 295, 851 N.Y.S.2d 505).  As for the victim of the second robbery, any discrepancy between his trial testimony that the detective had told him “they might have the person, according to ․ the description I had given them,” and the detective's hearing testimony that she simply asked the victim to view a lineup, could not have materially affected the suppression ruling (see People v. Rodriguez, 64 N.Y.2d 738, 740, 485 N.Y.S.2d 976, 475 N.E.2d 443 [1984]).

We find the sentence excessive to the extent indicated.