PEOPLE v. MENA

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

The PEOPLE of the State of New York, Respondent, v. Socrates MENA, Defendant-Appellant.

Decided: October 25, 2001

NARDELLI, J.P., TOM, ANDRIAS, LERNER and MARLOW, JJ. Mark Dwyer, for Respondent. Edith Blumberg, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Bonnie Wittner, J.), rendered November 6, 1997, convicting defendant, after a jury trial, of three counts of rape in the first degree, four counts of sodomy in the first degree, two counts of robbery in the first degree and sexual abuse in the first degree, and sentencing him, as a second felony offender, to an aggregate term of 66 to 132 years, unanimously affirmed.

Defendant's motion to suppress identification testimony was properly denied.   Although defendant's ponytail figured prominently in the witnesses' descriptions, the undisputed evidence at the hearing established that defendant and the fillers were positioned in a way that obscured defendant's ponytail.   Defendant never turned sideways during the viewings, and from the perspective of the witnesses viewing the lineup, they could only see the front of defendant's face.   In addition, two other fillers had some length of hair in back.   Accordingly, the circumstance of defendant being the only participant in the lineup with a ponytail did not render the lineup unduly suggestive in that it did not create a substantial likelihood that defendant would be singled out for identification (see, People v. Chipp, 75 N.Y.2d 327, 335, 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;  People v. Diaz, 138 A.D.2d 728, 526 N.Y.S.2d 540, lv. denied, 72 N.Y.2d 858, 532 N.Y.S.2d 508, 528 N.E.2d 898).

We perceive no basis for reduction of sentence.