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People v. Wallington

Appellate Division of the Supreme Court of New York, First Department
Apr 27, 2000
271 A.D.2d 384 (N.Y. App. Div. 2000)

Opinion

April 27, 2000.

Judgment, Supreme Court, Bronx County (Efrain Alvarado, J., at hearing; Harold Silverman, J., at jury trial and sentence), rendered November 14, 1996, convicting defendant of two counts of robbery in the second degree, and sentencing him, as a second felony offender, to concurrent terms of 12 1/2 to 25 years, unanimously affirmed.

Erica M. Fitzgerald, for respondent.

Kathryn L. Turner, for defendant-appellant.

MAZZARELLI, J.P., ELLERIN, LERNER, RUBIN, ANDRIAS, JJ.


Defendant's suppression motion was properly denied. We reject defendant's argument that the lack of a tape recording of the vocal aspect of the lineup requires suppression. Based on the totality of circumstances, we conclude that the People met their initial burden of showing that the identification procedure was not unduly suggestive. Each of the witnesses was able to identify defendant before hearing the lineup participants speak a phrase used in the crime, and the voice lineup was conducted merely as a secondary procedure (see, People v. McRae, 195 A.D.2d 180, 185-187,lv denied 83 N.Y.2d 969). The testimony also established that none of the lineup participants had accents. Moreover, there is no indication that the description given by either witness included anything distinctive about defendant's voice.

The hearing court properly declined to reopen the Wade hearing, after properly determining that the new facts revealed at trial would not have affected the suppression ruling.

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


Summaries of

People v. Wallington

Appellate Division of the Supreme Court of New York, First Department
Apr 27, 2000
271 A.D.2d 384 (N.Y. App. Div. 2000)
Case details for

People v. Wallington

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. LAMONTE WALLINGTON…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Apr 27, 2000

Citations

271 A.D.2d 384 (N.Y. App. Div. 2000)
708 N.Y.S.2d 60

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Thus, the absence of a video of the lineup does not require suppression. People v. Wallington , 271 AD2d 384…

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The R R notes that "that the voice lineup was not recorded does not render the lineup impermissibly…