PEOPLE v. RIDDICK (1998)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Curci, J.), rendered October 5, 1995, convicting him of attempted robbery in the first degree, attempted robbery in the second degree (two counts), assault in the second degree (two counts), criminal possession of a weapon in the second degree (two counts), and criminal possession of a weapon in the third degree (two counts), upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress lineup identification testimony.

ORDERED that the judgment is affirmed.

 The testimony at the Wade hearing established that the witnesses to an attempted armed robbery at the NYNEX Building in Brooklyn had described one of the perpetrators as wearing dreadlocks and a striped shirt.   When the defendant was shown to certain of these witnesses at a lineup, he and the five fillers wore baseball caps concealing their hair, but the defendant was the only individual in the lineup to wear a striped shirt.   Under the circumstances, the lineup was unduly suggestive, and the identification testimony of the witnesses who viewed the tainted lineup should not have been admitted in the absence of a showing of independent source (People v. Adams, 53 N.Y.2d 241, 440 N.Y.S.2d 902, 423 N.E.2d 379;  cf., People v. Malloy, 55 N.Y.2d 296, 300, 449 N.Y.S.2d 168, 434 N.E.2d 237, cert. denied 459 U.S. 847, 103 S.Ct. 104, 74 L.Ed.2d 93).   However, in light of the overwhelming evidence of the defendant's guilt-which included the properly-admitted in-court identification of him by two other witnesses who had had ample opportunity to observe the defendant during the commission of the crime but who had not viewed the lineup-we conclude that the error was harmless beyond a reasonable doubt (see, e.g., People v. Owens, 74 N.Y.2d 677, 543 N.Y.S.2d 371, 541 N.E.2d 400;  People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787;  People v. McQueen, 170 A.D.2d 696, 697-698, 566 N.Y.S.2d 940).

 The record reveals that defense counsel made countless, and frequently frivolous, objections and motions for a mistrial;  argued interminably with the court;  refused to heed the court's instructions not to make speeches before the jury;  and conducted unreasonably lengthy and repetitive cross-examinations.   In order to prevent this disruptive behavior from distracting the jury, the court was obliged to intervene with a certain amount of regularity “to keep the proceedings within the reasonable confines of the issues and to encourage clarity rather than obscurity in the development of proof” (see, e.g., People v. Moulton, 43 N.Y.2d 944, 945, 403 N.Y.S.2d 892, 374 N.E.2d 1243).   Such intervention did not deprive the defendant of a fair trial-particularly where comparable remarks by the trial court were also addressed to the prosecutor (see, e.g., People v. Gonzalez, 38 N.Y.2d 208, 210, 379 N.Y.S.2d 397, 341 N.E.2d 822;  People v. Dempsey, 217 A.D.2d 705, 630 N.Y.S.2d 331;  People v. Cuba, 154 A.D.2d 703, 546 N.Y.S.2d 684).   It is noteworthy that the defendant has identified no imbalance in the court's rulings in the course of this seven-week, aggressively prosecuted and defended trial.   Finally, any prejudice that might have accrued to the defendant from the court's conduct towards defense counsel was neutralized by the Judge's careful instructions that he had no opinion as to the guilt or innocence of the defendant, that the jurors were to decide the case on the merits alone, that they were not to consider anything he had said during the course of the trial as bearing upon the merits of the case, and that they were to ignore any remarks he had uttered while discharging his job as manager of the trial proceedings (see, e.g., People v. Almeida, 159 A.D.2d 508, 509, 552 N.Y.S.2d 377).

The defendant's sentence was not excessive (see, People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

MEMORANDUM BY THE COURT.