Opinion
July 7, 1986
Appeal from the County Court, Westchester County (Cowhey, J.).
Judgment affirmed.
In reviewing suppression issues, great weight must be accorded the determination of the hearing court with its particular advantages of having seen and heard the witnesses (see, People v Prochilo, 41 N.Y.2d 759, 761; People v Putland, 105 A.D.2d 199, 206; People v Gee, 104 A.D.2d 561), and that determination should not be disturbed where it is supported by the record (People v Gee, supra; People v Boyce, 89 A.D.2d 623, 624; People v Duncan, 75 A.D.2d 823, 824; see also, People v Armstead, 98 A.D.2d 726). In this case, the question of the voluntariness of the defendant's confession presented an issue of credibility, and the hearing court's resolution of that issue is supported by the record and should not be disturbed (see, People v Alver, 111 A.D.2d 339, 340). The police testimony given at the pretrial hearing indicated that Miranda warnings were administered and that the defendant made a knowing and intelligent waiver of his rights. There was no evidence corroborating the defendant's testimony to the effect that he had suffered repeated beatings at the hands of the police. In particular, a lineup photograph taken shortly after the defendant's interrogation failed to substantiate his claim that his lip had been "busted" by the police. Accordingly, the hearing court was warranted in declining to credit the defendant's testimony (see, People v Catone, 105 A.D.2d 844, mod on other grounds 65 N.Y.2d 1003; People v Chalos, 111 A.D.2d 827, 828).
In addition, there is no evidence that the delay between the defendant's arrest and his arraignment was unnecessary (CPL 140.20; People v Williams, 120 A.D.2d 630; People v Williams, 112 A.D.2d 259), and, in any event, "unwarranted delay in arraignment is but one of the many pertinent factors bearing on the question of the voluntariness and, therefore, admissibility of a defendant's inculpatory statements" (see, People v Dairsaw, 46 N.Y.2d 739, 740, cert denied 440 U.S. 985; see also, People v Hopkins, 58 N.Y.2d 1079, 1081).
Further, the hearing court correctly denied suppression of evidence regarding the victim's identification of the defendant at a pretrial lineup. The evidence supports the court's conclusion that the corporeal identification procedure was not unduly suggestive (see, People v Rodriguez, 64 N.Y.2d 738, 740). Although only five persons appeared in the lineup and, unbeknownst to the police, the victim was previously acquainted with two of them, we decline to adopt a per se requirement regarding the numerical composition of lineups. We conclude, rather, that the question of undue suggestiveness is one to be determined by considering the totality of the circumstances surrounding the lineup (see, People v Wright, 112 A.D.2d 179; People v Chamberlain, 96 A.D.2d 959, 960) and, in this case, the attendant circumstances demonstrate that the lineup was not impermissibly suggestive. Moreover, the hearing record contains evidence which supports the suppression court's conclusion that an independent source existed for the victim's in-court identification of the defendant, i.e., her observations during the crime (see, People v Papile, 113 A.D.2d 776, 777; People v Smalls, 112 A.D.2d 173, 174). The duration of the attack was almost 30 minutes and, although it was dark, there was sufficient lighting in the area to permit her to observe the defendant's entire face, particularly because she was face-to-face with him for much of the time.
We have reviewed the remaining contentions advanced by the defendant and find them to be without merit. Lazer, J.P., Bracken, Brown and Kooper, JJ., concur.