PEOPLE v. BRUNSON

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

The PEOPLE of the State of New York, Respondent, v. Justice BRUNSON, Defendant-Appellant.

Decided: May 23, 2006

TOM, J.P., MAZZARELLI, ANDRIAS, MARLOW, MALONE, JJ. Richard M. Greenberg, Office of the Appellate Defender, New York (Eunice C. Lee of counsel), and Linklaters, New York (Paul S. Hessler of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Martin J. Foncello of counsel), for respondent.

Judgment, Supreme Court, New York County (Edward McLaughlin, J. at hearing;  Bonnie Wittner, J. at jury trial and sentence), rendered June 17, 2003, convicting defendant of robbery in the first degree and four counts of robbery in the second degree, and sentencing him, as a second violent felony offender, to concurrent terms of 15 years, unanimously affirmed.

The court properly denied defendant's suppression motion.   The record supports the court's finding that the lineup was not unduly suggestive (see People v. Chipp, 75 N.Y.2d 327, 336, 553 N.Y.S.2d 72, 552 N.E.2d 608 [1990], cert. denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70 [1990] ), and fails to support defendant's assertion that he was the only lineup participant who met the victim's description.   The court also properly denied defendant's request to call the victim to testify at the Wade hearing because the victim's testimony was not necessary to resolve any issues about the constitutionality of the identification procedure (see id. at 337-339, 553 N.Y.S.2d 72, 552 N.E.2d 608).   The sole issue raised at the hearing was the fairness of the composition of the lineup, and defendant did not show how the victim could provide testimony relevant to that issue.

We perceive no basis for reducing the sentence.