People v Kenley

People v Kenley 2011 NY Slip Op 06331 Decided on August 25, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on August 25, 2011
Mazzarelli, J.P., Sweeny, Freedman, Manzanet-Daniels, Román, JJ.
5469 4787/07

[*1]The People of the State of New York, Respondent,

v

Eric Kenley, Defendant-Appellant.



 
Cardozo Criminal Appeals Clinic, New York, (Stanley
Neustadter of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Allen J.
Vickey of counsel), for respondent.

Judgment, Supreme Court, New York County (A. Kirke Bartley, Jr., J.), rendered July 30, 2008, convicting defendant, after a jury trial, of robbery in the first degree (two counts), robbery in the second degree and attempted robbery in the first degree, and sentencing him, as a second violent felony offender, to an aggregate term of 15 years, unanimously reversed, on the law, defendant's motion to suppress lineup identifications made by the witnesses to the two alleged robberies granted, and the matter remanded for a new trial preceded by an independent source hearing regarding those witnesses.

A defendant is not entitled to a lineup in which the fillers are "nearly identical to him" (People v Chipp, 75 NY2d 327, 336 [1990], cert denied 498 US 833 [1990]). However, a lineup is unduly suggestive when only the defendant matches a key aspect of the description of the perpetrator provided by a witness or witnesses (see Foster v California, 394 US 440, 441-43 [1969]; People v Owens, 74 NY2d 677, 678 [1989]).

Defendant was charged with two robberies that occurred on the same morning. The witnesses to the robberies described the driver of the getaway car, respectively, as "a huge, big, fat, black guy," "a real big, real huge black guy," and "very heavy-set [and] large."

A review of the lineup photograph reveals that defendant, who weighed 400 pounds, was the only participant who fits these descriptions. Although the fillers were large men, there was a very noticeable weight difference between defendant and the fillers. While the lineup participants were seated, and this can sometimes satisfactorily minimize differences in weight, it is clear from the photo that there was a marked difference between defendant and the fillers.

We do not mean to suggest that the police are obligated to find grossly overweight fillers when dealing with the situation presented here, and we recognize the practical difficulties that would be involved in doing so. Instead, this situation would call for the use of some kind of covering to conceal the weight difference (see e.g. People v Murphy, 1 AD3d 184 [2003], lv denied 4 NY3d 801 [2005]). [*2]

There is a reasonable possibility that the tainted testimony of the witnesses to the first robbery contributed to defendant's conviction of the second. Therefore, a new trial is required as to the second robbery as well.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: AUGUST 25, 2011

CLERK