Judgment, Supreme Court, New York County (Bruce Allen, J. at suppression hearing; Gregory Carro, J. at jury trial and sentence), rendered March 3, 2008, convicting defendant of murder in the second degree (two counts), attempted murder in the second degree and criminal possession of a weapon in the second degree, and sentencing him to an aggregate term of 50 years to life, unanimously affirmed.
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.
Gonzalez, P.J., Tom, Andrias, Nardelli, Richter, JJ.
The court properly denied defendant's motion to suppress identification testimony. After identifying defendant at an otherwise fair lineup, a witness told a detective that defendant was wearing clothing taken during the crime. The witness had never given a description of the assailant that included clothing, or described the clothing that had been taken, and when the police arrested defendant more than a week after the crime they were unaware that the clothes he was wearing had any significance. Accordingly, we conclude that the lineup was not unduly suggestive (see People v Carroll, 303 AD2d 200 , lv denied 100 NY2d 560 ). Moreover, the witness knew defendant by his nickname, and had identified him from a proper photo array two days before the lineup. To the extent that an identification procedure may be unconstitutionally suggestive even when the suggestiveness is the product of pure happenstance (see Raheem v Kelly, 257 F3d 122, 137 [2d Cir 2001], cert denied 534 US 1118 ), we find that this identification was sufficiently reliable. In any event, we conclude that any error in the admission of this witness's lineup or in-court identifications was harmless in view of the overwhelming evidence of defendant's guilt (see People v Crimmins, 36 NY2d 230 ).
We perceive no basis for reducing the sentence.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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