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Supreme Court, Appellate Term, New York.

The PEOPLE of the State of New York, Respondent, v. Arturo COLLADO, Appellant.

Decided: January 26, 2005

Present:  PESCE, P.J., PATTERSON and RIOS, JJ. Joseph E. Justiz, Kew Gardens, for appellant. Richard A. Brown, District Attorney, Kew Gardens (John M. Castellano and Sharon Y. Brodt of counsel), for respondent.

Appeal by defendant from a judgment of the Criminal Court, Queens County (S. Knopf, J., Judgment;  P. Mullings, J., at the hearing), rendered April 8, 2002, convicting defendant, after a nonjury trial, of sexual abuse in the third degree (Penal Law § 130.55) 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 identification testimony.

Judgment of conviction unanimously affirmed.

[1] The court properly denied suppression of evidence of the hospital investigator's display of defendant's photograph to the complainant, the day after defendant's alleged unauthorized sexual touching of complainant as she lay in her hospital bed recovering from surgery.   Fourth Amendment due process considerations apply only to government officials or their agents, not the investigative activities of private agencies or individuals (People v. Jones, 47 N.Y.2d 528, 533, 419 N.Y.S.2d 447, 393 N.E.2d 443 [1979];  People v. Martin, 240 A.D.2d 434, 434-435, 658 N.Y.S.2d 105 [1997];  see also People v. Horman, 22 N.Y.2d 378, 381, 292 N.Y.S.2d 874, 239 N.E.2d 625 [1968] ).   While private conduct may be “so pervaded by governmental involvement that it loses its character as such and invokes the full panoply of constitutional protections” (People v. Ray, 65 N.Y.2d 282, 286, 491 N.Y.S.2d 283, 480 N.E.2d 1065 [1985] ), the actions of a hospital employee, pursuing an internal investigation of another employee's alleged misconduct, are not subject to the constitutional scrutiny appropriate to suppression hearings (e.g. People v. Stephenson, 202 A.D.2d 280, 281, 608 N.Y.S.2d 662 [1994];  see also Matter of Angel S., 302 A.D.2d 303, 758 N.Y.S.2d 606 [2003];  People v. Martin, 240 A.D.2d at 435, 658 N.Y.S.2d 105).   The unrebutted testimony of the hospital official and the detective involved in the Police Department's investigation of the complaint established that the photo's display occurred in the course of the hospital's own internal investigation and without police knowledge, instigation, advice, supervision, or any other involvement so pervasive as to require constitutional scrutiny.

 The claim that the lineup was unduly suggestive because the witness anticipated defendant's participation in the lineup, also lacks merit.   As a practical matter, most persons asked to view a lineup, after having identified the perpetrator from a photograph, intuitively anticipate that the lineup will include that person.   Such an “idea” in and of itself does not render a lineup impermissibly suggestive (e.g. People v. Tapling, 159 A.D.2d 260, 261, 552 N.Y.S.2d 255 [1990] ).   The rule has been applied where the witness “had [actual] knowledge prior to the lineup that the man whose photograph [he] had selected would be included in the lineup” (People v. Wiredo, 138 A.D.2d 652, 653, 526 N.Y.S.2d 235 [1988] ), and where a police officer informed the witness that the suspect would be in the lineup (People v. Anthony, 165 A.D.2d 876, 877, 560 N.Y.S.2d 348 [1990];  People v. Martinez, 151 A.D.2d 786, 787, 543 N.Y.S.2d 116 [1989];  People v. Hammond, 131 A.D.2d 876, 876-877, 517 N.Y.S.2d 232 [1987] ).   There is no evidence that anyone suggested to the complainant that the person in the photo, much less a person suspected of committing the offense, would be in the lineup, and we infer no undue suggestiveness in this otherwise properly conducted lineup (People v. Martinez, 151 A.D.2d at 787, 543 N.Y.S.2d 116).

 The complainant's pretrial viewing of defendant while both were seated in the visitor's gallery portion of the courtroom apparently resulted from the prosecutor's belief that the complainant, who desired to view court proceedings, was entitled to do so and without regard for the risk of undue suggestiveness.   While we cannot condone an indifference to the issue on the part of a perhaps inexperienced prosecutor, we do not find reversible error.   A witness's exposure to an accused at a court proceeding may technically implicate due process concerns (People v. White, 73 N.Y.2d 468, 474, 541 N.Y.S.2d 749, 539 N.E.2d 577 [1989] ), but because such encounters are not “police-arranged” they are generally exempt from constitutional scrutiny (e.g. People v. Myers, 212 A.D.2d 1032, 1033, 623 N.Y.S.2d 48 [1995] [whatever suggestiveness is implied by witness's viewing of defendant at a parole revocation hearing does not implicate due process considerations because it was not “police-arranged”];  People v. MacKay, 98 A.D.2d 732, 469 N.Y.S.2d 146 [1983] [“complainant's in-court identification was not tainted by her attendance at defendant's arraignment inasmuch as ‘the due process clause is violated only where the identification is the result of improper conduct by law enforcement officials' ” (citations omitted) ] ).   The herein encounter was not an arranged confrontation, but may be analogized to an inadvertent identification which occurs in a police station but which was not “police-arranged” or otherwise orchestrated to reinforce the witness's ability to identify defendant while evading Fourth Amendment scrutiny (e.g. People v. Dixon, 85 N.Y.2d 218, 223, 623 N.Y.S.2d 813, 647 N.E.2d 1321 [1995] [no “police-arranged” identification where a witness, at the police station for another purpose, inadvertently views and identifies suspect];  People v. Nimmons, 177 A.D.2d 444, 445, 576 N.Y.S.2d 540 [1991] [same] ).   Here, the prosecutor flatly denied that in accommodating the complainant's request to view court proceedings he had any intent to promote an unsupervised viewing of defendant, and as with the single-photo display, on the herein facts the event did not implicate due process concerns.

 Defendant's claim that the trial proof was legally insufficient and contrary to the weight of the evidence is unpreserved aside from the question of the admissibility of the identification evidence, and if admissible, the weight it should be afforded.   A claim of legal insufficiency is interposed by a timely objection, with the requisite specificity regarding the deficiency perceived (CPL 470.05[2];  People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995];  People v. Santos, 86 N.Y.2d 869, 870, 635 N.Y.S.2d 168, 658 N.E.2d 1041 [1995];  People v. Bynum, 70 N.Y.2d 858, 859, 523 N.Y.S.2d 492, 518 N.E.2d 4 [1987] ).   Here, defendant made only a general allegation of evidentiary insufficiency which preserves no claim for appellate review.   In any event, viewed in the light most favorable to the People (People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983] ), the verdict was supported by legally sufficient evidence.   As noted, the court did not err in admitting the identification evidence, and we are satisfied that the proof was legally sufficient to establish defendant's unauthorized sexual touching of the complainant.   Moreover, in the exercise of our factual review power it cannot be said that the verdict was contrary to the weight of the evidence (CPL 470.15[5];  People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).   Insofar as the proof concerned matters of credibility and “the relative probative force of conflicting inferences that may be drawn from the testimony” (id.), such matters are primarily for the finder of fact who saw and heard the witnesses (People v. Cummings, 291 A.D.2d 454, 455, 738 N.Y.S.2d 359 [2002];  People v. Hernandez, 288 A.D.2d 489, 490, 733 N.Y.S.2d 886 [2001] ), which included the testimonies of the hospital investigator and the detective whose accounts were not impeached or contradicted at trial to any meaningful extent.   Defendant's own testimony “merely created factual issues which the [court], as the ․ arbiter of credibility, resolved against him” (People v. Reynolds, 133 A.D.2d 499, 500, 519 N.Y.S.2d 425 [1987];  People v. Gertz, 189 Misc.2d 315, 316, 731 N.Y.S.2d 326 [App. Term, 2001] ), and whatever discrepancies may be discerned in complainant's testimony did not render her testimony so manifestly untrue or so contrary to experience and common sense as to require that her account of the offense be rejected as unworthy of belief (People v. Coico, 156 A.D.2d 578, 579, 549 N.Y.S.2d 86 [1989];  People v. Garafolo, 44 A.D.2d 86, 88, 353 N.Y.S.2d 500 [1974] ).