PEOPLE v. SANDERS

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

The PEOPLE of the State of New York, Respondent, v. Harold SANDERS, Defendant-Appellant.

Decided: April 13, 2000

WALLACH, J.P., LERNER, RUBIN and BUCKLEY, JJ. Robert W. Gifford, for Respondent. Steven A. Feldman, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Leona Leo, J., at suppression hearing and jury trial;  Juanita Bing Newton, J., at sentence), rendered December 22, 1998, as amended March 2, 1999, convicting defendant of burglary in the second degree, and sentencing him, as a persistent violent felony offender, to a term of 16 years to life, unanimously affirmed.

 The court properly exercised its discretion in admitting evidence of defendant's arrest for an uncharged trespass, since this testimony was necessary to complete the narrative of the case, to explain how defendant came to be arrested in possession of the burglary complainant's property, and to dispel speculation by the jury (see, People v. Fay, 85 A.D.2d 512, 444 N.Y.S.2d 629, appeal withdrawn 56 N.Y.2d 593;  see also, People v. Till, 87 N.Y.2d 835, 637 N.Y.S.2d 681, 661 N.E.2d 153).   The court's thorough limiting instructions prevented any prejudice.

 Defendant's suppression motion was properly denied.   The lineup was not unduly suggestive because there was a sufficient resemblance between defendant and the other lineup participants so that defendant did not stand out (see, People v. Chipp, 75 N.Y.2d 327, 553 N.Y.S.2d 72, 552 N.E.2d 608, cert. denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70).

 There was no error under People v. Trowbridge, 305 N.Y. 471, 113 N.E.2d 841, because the officer's testimony describing the lineup procedure, without stating that the witness actually identified defendant, does not constitute bolstering (People v. James, 262 A.D.2d 139, 692 N.Y.S.2d 50, lv. denied 93 N.Y.2d 1020, 697 N.Y.S.2d 579, 719 N.E.2d 940;  People v. Carolina, 211 A.D.2d 454, 621 N.Y.S.2d 49, lv. denied 85 N.Y.2d 860, 624 N.Y.S.2d 379, 648 N.E.2d 799).

MEMORANDUM DECISION.