PEOPLE v. JACKSON

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

The PEOPLE of the State of New York, Respondent, v. Ronald JACKSON, Defendant-Appellant.

Decided: June 21, 2001

ROSENBERGER, J.P., WILLIAMS, TOM, ANDRIAS and MARLOW, JJ. Ellen Sue Handman, for respondent. Bruce D. Austern, for defendant-appellant.

Judgment, Supreme Court, New York County (Bernard Fried, J. at suppression hearing;  Bruce Allen, J. at jury trial and sentence), rendered October 19, 1999, convicting defendant of robbery in the first degree (two counts), attempted robbery in the first degree (two counts), assault in the second degree (two counts), criminal use of a firearm in the first degree and criminal possession of a weapon in the second degree, and sentencing him, as a second violent felony offender, to an aggregate term of 10 years, unanimously affirmed.

 Defendant's suppression motion was properly denied.   Since the suspect's age was not highlighted in the complainant's description, the age discrepancy between defendant and the fillers did not create a substantial likelihood of singling defendant out for identification (People v. Cruz, 220 A.D.2d 253, 632 N.Y.S.2d 102, lv. denied 87 N.Y.2d 920, 641 N.Y.S.2d 602, 664 N.E.2d 513;  People v. Gonzalez, 173 A.D.2d 48, 56, 578 N.Y.S.2d 890, lv. denied 79 N.Y.2d 1001, 584 N.Y.S.2d 455, 594 N.E.2d 949).   The record reveals that the suppression court inspected the lineup photograph and determined that the similarities between defendant and the fillers were sufficient to ensure the reliability of the identification (see, People v. Young, 261 A.D.2d 109, 690 N.Y.S.2d 190, lv. denied 93 N.Y.2d 1007, 695 N.Y.S.2d 753, 717 N.E.2d 1090;  People v. Peterson, 183 A.D.2d 450, 583 N.Y.S.2d 419, lv. denied 81 N.Y.2d 765, 594 N.Y.S.2d 728, 610 N.E.2d 401).   Therefore, the loss of the photograph after the trial does not create a presumption of suggestiveness (People v. Prado, 276 A.D.2d 383, 714 N.Y.S.2d 475, lv. denied 95 N.Y.2d 967, 722 N.Y.S.2d 485, 745 N.E.2d 405;  People v. Davila, 257 A.D.2d 485, 685 N.Y.S.2d 5, lv. denied 93 N.Y.2d 968, 695 N.Y.S.2d 54, 716 N.E.2d 1099).

 The court properly exercised its discretion in denying defendant's motion for the drastic remedy of a mistrial based on a People's witness's brief mention that defendant was “on parole” in response to a broad question on cross-examination (see, People v. McKnight, 281 A.D.2d 293, 722 N.Y.S.2d 152).   The court struck this testimony at defendant's request.   Although a curative instruction would have sufficed, defendant expressly declined the court's offer to give one.