People v Garner

People v Garner 2010 NY Slip Op 01897 [71 AD3d 491] March 11, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, April 28, 2010

The People of the State of New York, Respondent,
v
Tykei Garner, Appellant.

—[*1] Steven Banks, The Legal Aid Society, New York (Jeffrey Dellheim of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Mary C. Farrington of counsel), for respondent.

Judgment, Supreme Court, New York County (Michael R. Ambrecht, J., at suppression hearing; Arlene R. Silverman, J., at plea and sentence), rendered September 11, 2007, convicting defendant of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony drug offender, to a term of 3½ years, unanimously affirmed.

The court properly denied defendant's motion to suppress identification testimony. As part of a long-term operation, an undercover officer made a drug buy from defendant and identified him from a photo array six weeks later, and from a lineup two months after that. Neither procedure was unduly suggestive (see People v Chipp, 75 NY2d 327, 336 [1990], cert denied 498 US 833 [1990]). In each procedure, the participants were generally similar in appearance and, given the particular description given by the undercover officer, there was nothing that highlighted defendant (see e.g. People v Carroll, 303 AD2d 200, 201 [2003], lv denied 100 NY2d 560 [2003]). To the extent the photo array could be viewed as suggestive, that suggestiveness was attenuated by the passage of time between the two procedures. Although the undercover officer received a copy of the photo array, there is no evidence that this influenced his lineup identification of defendant. Concur—Mazzarelli, J.P., Saxe, Moskowitz, Acosta and Renwick, JJ.