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Unduly Suggestive Lineups: When Only The Defendant Matches A Key Aspect Of The Description

People v. Kenley 2011 NY SLip Op 06331

Appellate Division, First Department Decided August 25, 2011

Issue: Whether the lineup was unduly suggestive when only the defendant matched a key aspect of the description provided by witnesses.

Holding:  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.  Foster v. California, 394 U.S. 440, 441-443 (1969); People v. Owens, 74 NY2d 677, 678 (1989).  However, 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).  The case was reversed and remanded for a new trial to be preceded by an independent source hearing regarding those witnesses.

Facts: The Defendant was charged with two robberies that occurred on the same morning.  Witnesses to the robberies described the driver of the getaway car as a huge, big, fat, black guy, a real big, real huge black guy, and a 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  avery noticeable weight difference between defendant and the fillers.

Legal Analysis: It is clear from the photo that there was  marked difference between defendant and the fillers.  The police are not obligated to find grossly overweight fillers when dealing with this kind of situation as there will always be practical difficulties in lineups.  Instead, this situation calls for the use of some kind of covering to conceal the weight difference see People v. Murphy 1 AD3d 184 (2003) lv. denied 4 NY3d 801 (2005).  There is a reasonable possibility that the tainted testimony of the witnesses to the first robbery contributed to the defendant’s conviction of the second.

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