PEOPLE v. WALLINGTON

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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Lamonte WALLINGTON, Defendant-Appellant.

Decided: April 27, 2000

MAZZARELLI, J.P., ELLERIN, LERNER, RUBIN and ANDRIAS, JJ. Erica M. Fitzgerald, for Respondent. Kathryn L. Turner, for Defendant-Appellant.

Judgment, Supreme Court, Bronx County (Efrain Alvarado, J., at hearing;  Harold Silverman, J., at jury trial and sentence), rendered November 14, 1996, convicting defendant of two counts of robbery in the second degree, and sentencing him, as a second felony offender, to concurrent terms of 12 1/212 to 25 years, unanimously affirmed.

Defendant's suppression motion was properly denied.   We reject defendant's argument that the lack of a tape recording of the vocal aspect of the lineup requires suppression.   Based on the totality of circumstances, we conclude that the People met their initial burden of showing that the identification procedure was not unduly suggestive.   Each of the witnesses was able to identify defendant before hearing the lineup participants speak a phrase used in the crime, and the voice lineup was conducted merely as a secondary procedure (see, People v. McRae, 195 A.D.2d 180, 185-187, 607 N.Y.S.2d 624, lv. denied 83 N.Y.2d 969, 616 N.Y.S.2d 22, 639 N.E.2d 762).   The testimony also established that none of the lineup participants had accents.   Moreover, there is no indication that the description given by either witness included anything distinctive about defendant's voice.

The hearing court properly declined to reopen the Wade hearing, after properly determining that the new facts revealed at trial would not have affected the suppression ruling.

MEMORANDUM DECISION.