People v Cubby Gibson

People v Gibson 2003 NY Slip Op 19653 [2 AD3d 281] December 18, 2003 Appellate Division, First Department As corrected through Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 25, 2004

The People of the State of New York, Respondent,
v
Cubby Gibson, Appellant.

—

Judgment, Supreme Court, Bronx County (Richard Price, J., at hearing; Joseph Cerbone, J., at jury trial and sentence), rendered April 5, 2000, as amended October 6, 2000, convicting defendant of robbery in the second degree, and sentencing him to a term of 3½ to 7 years, unanimously affirmed.

The court properly denied defendant's motion to suppress identification testimony. The lineup photograph establishes that the lineup was not unduly suggestive, since the participants sufficiently resembled each other so as not to create a substantial likelihood that defendant would be singled out (see People v Chipp, 75 NY2d 327, 336 [1990], cert denied 498 US 833 [1990]). In particular, the use of hats successfully disguised defendant's hairstyle. Furthermore, even assuming that the witness was aware that the lineup would most likely contain the person whose photograph he had previously selected from an array, that fact did not create a serious risk of misidentification (see People v Rodriguez, 64 NY2d 738, 740-741 [1984]). Concur—Mazzarelli, J.P., Saxe, Lerner and Marlow, JJ.