People v. Jackson

—Judgment, Supreme Court, New York County (Bernard Fried, J., at suppression hearing; Bruce Allen, J., at jury trial and sentence), rendered October 19, 1999, convicting defendant of robbery in the first degree (two counts), attempted robbery in the first degree (two counts), assault in the second degree (two counts), criminal use of a firearm in the first degree and criminal possession of a weapon in the second degree, and sentencing him, as a second violent felony offender, to an aggregate term of 10 years, unanimously affirmed. Defendant’s suppression motion was properly denied. Since the suspect’s age was not highlighted in the complainant’s description, the age discrepancy between defendant and the fillers did not create a substantial likelihood of singling defendant out for identification (People v Cruz, 220 AD2d 253, lv denied 87 NY2d 920; People v Gonzalez, 173 AD2d 48, 56, lv denied 79 NY2d 1001). The record reveals that the suppression court inspected the lineup photograph and determined that the similarities between defendant and the fillers were sufficient to ensure the reliability of the identification (see, People v Young, 261 AD2d 109, lv denied 93 NY2d 1007; People v Peterson, 183 AD2d 450, lv denied 81 NY2d 765). Therefore, the loss of the photograph after the trial does not create a presumption of suggestiveness (People v Prado, 276 AD2d 383, lv denied 95 NY2d 967; People v Davila, 257 AD2d 485, lv denied 93 NY2d 968). The court properly exercised its discretion in denying defendant’s motion for the drastic remedy of a mistrial based on a People’s witness’s brief mention that defendant was “on parole” in response to a broad question on cross-examination (see, People v McKnight, 281 AD2d 293). The court struck this testimony at defendant’s request. Although a curative instruction would have sufficed, defendant expressly declined the court’s offer to give one. Concur — Rosenberger, J. P., Williams, Tom, Andrias and Marlow, JJ.