         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1509
KA 07-00393
PRESENT: SMITH, J.P., PERADOTTO, CARNI, LINDLEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RASHAD PETERKIN, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (GEOFFREY KAEUPER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Francis A. Affronti, J.), rendered January 23, 2007. The judgment
convicted defendant, upon a jury verdict, of robbery in the first
degree (six counts), burglary in the first degree, kidnapping in the
second degree (three counts), aggravated sexual abuse in the first
degree, sexual abuse in the first degree, petit larceny, and unlawful
imprisonment in the first degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of, inter alia, six counts of robbery in the first
degree (Penal Law § 160.15 [4]) arising from two separate gunpoint
robberies. Contrary to defendant’s contention, Supreme Court properly
refused “to suppress the in-court identification of [the] victim who
had viewed defendant’s photograph in the newspaper . . . or to require
the People to establish that [such] victim[] had an independent basis
for [his] identification[]” (People v Fontanez, 278 AD2d 933, 934, lv
denied 96 NY2d 862; see People v Stevens, 44 AD3d 882; People v
Fuller, 185 AD2d 446, 449, lv denied 80 NY2d 974, 81 NY2d 788). We
reject the contention of defendant that the in-court identification
was tainted because the lineup in which the victim in question
identified defendant was conducted after that victim had viewed a
photo array. “Multiple pretrial identification procedures are not
inherently suggestive . . ., and the record supports the court’s
determination that the photo array and subsequent lineup ‘were not so
suggestive as to create the substantial likelihood that defendant
would be misidentified’ ” (People v Johnson, 52 AD3d 1286, 1286, lv
denied 11 NY3d 738; see People v Brown, 254 AD2d 781, 782, lv denied
92 NY2d 1029). Contrary to defendant’s contention, the comments of
the police investigator, including her “comment to the [victim in
                                 -2-                          1509
                                                         KA 07-00393

question] that [she] believed that the police had arrested the same
individual [he] had selected from the photo[ ] array did not render
the lineup unduly suggestive . . . [inasmuch as] there was no
suggestion as to which of the lineup participants was that individual”
(People v Simmonds, 182 AD2d 650, 651-652, lv denied 80 NY2d 910; see
People v Goodman, 167 AD2d 352, lv denied 77 NY2d 878). Further, we
conclude that “[t]he prosecutor’s reference to the prior photo
identification was ill-advised, but [it] was not tantamount to
coaching the [victim] to make a particular selection at the lineup”
(People v Coble, 168 AD2d 981, 982, lv denied 78 NY2d 954; see
generally People v Wongshing, 245 AD2d 186, lv denied 91 NY2d 978).
We have considered defendant’s remaining contentions concerning
suppression of the identification testimony and conclude that they are
without merit.

     Defendant further contends that he was deprived of a fair trial
based on the court’s denial of his request for funding in excess of
the $1,000 statutory limit to retain an expert with respect to
identification issues (see County Law § 722-c). Even assuming,
arguendo, that the court erred in denying that request, we conclude
that defendant was not thereby deprived of a fair trial because this
“is not a ‘case [that] turns on the accuracy of eyewitness
identifications [where] there is little or no corroborating evidence
connecting the defendant to the crime’ ” (People v Abney, 13 NY3d 251,
269; see People v Lee, 96 NY2d 157, 162-163). Indeed, “the
corroboration was strong enough for the . . . court reasonably to
conclude that the expert’s testimony would be of minor importance”
(People v Young, 7 NY3d 40, 45).

     We reject the contention of defendant that the court abused its
discretion in denying his request for an adjournment of the trial
based on the People’s belated delivery of records related to DNA
evidence and his inability to retain an expert concerning the issue of
identification. Although defendant is correct that the court’s
discretion with respect to a request for an adjournment is more
narrowly construed when a fundamental right is impacted (see People v
Spears, 64 NY2d 698, 699-700; People v McNear, 265 AD2d 810, 810-811,
lv denied 94 NY2d 864), it is well settled that “[t]he court’s
exercise of discretion in denying a request for an adjournment will
not be overturned absent a showing of prejudice” (People v Arroyo, 161
AD2d 1127, 1127, lv denied 76 NY2d 852; see People v Bones, 50 AD3d
1527, lv denied 10 NY3d 956), and defendant made no such showing here.
Defendant was not prejudiced by the People’s belated delivery of
records related to DNA evidence inasmuch as the trial did not commence
until two weeks after defendant obtained those records and the court
eventually precluded the People from introducing that evidence. Also,
defendant was not prejudiced by his inability to retain an expert on
the issue of identification.



Entered:   February 10, 2011                    Patricia L. Morgan
                                                Clerk of the Court
