People v. Kenley

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]). However, 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 (see Foster v California, 394 US 440, 441-443 [1969]; People v Owens, 74 NY2d 677, 678 [1989]). Defendant was charged with two robberies that occurred on the same morning. The witnesses to the robberies described the driver of the getaway car, respectively, as “a huge, big, fat, black guy,” “a real big, real huge black guy,” and “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 a very noticeable weight difference between defendant and the fillers. While the lineup participants were seated, and this can sometimes satisfactorily minimize differences in weight, it is clear from the photo that there was a marked difference between defendant and the fillers. We do not mean to suggest that the police are obligated to find grossly overweight fillers when dealing with the situation presented here, and we recognize the practical difficulties that would be involved in doing so. Instead, this situation would call for the use of some kind of covering to conceal the weight difference (see e.g. 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 defendant’s conviction of the second. Therefore, a new trial is required as to [519] the second robbery as well. Concur — Mazzarelli, J.R, Sweeny, Freedman, Manzanet-Daniels and Román, JJ.