People v. Carolina

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Brill, J.), rendered May 8, 1989, convicting him of robbery in the first degree and robbery in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Douglass, J.), and after a reopened hearing during trial (Brill, J.), of that branch of the defendant’s omnibus motion which was to suppress identification testimony.

Ordered that the judgment is affirmed.

A witness’s identification of the defendant at the time of his arrest four days after the robbery was spontaneous and not the result of any police procedure (see, People v Whisby, 48 NY2d 834 ; People v Byrd, 173 AD2d 549 ; People v Griffin, 161 AD2d 799, 800-801 ). The hearing and trial courts properly denied suppression of this witness’s identification testimony.

The lineup identification testimony, however, was improperly admitted. Prominent in the description of the defendant *521 was his distinctive flattop haircut, and it was error to conduct a lineup where he alone wore his hair in this style (see, People v Moore, 143 AD2d 1056 ; cf., People v Simmons, 158 AD2d 950 [distinctive hairstyle did not figure prominently in witness’s description]). The suggestiveness could easily have been eliminated by providing the participants with headgear (see, People v Meatley, 162 AD2d 721 ). In view of the other, untainted identification testimony by two eyewitnesses, however, this error was harmless beyond a reasonable doubt (see, People v Crimmins, 36 NY2d 230, 241-242 ).

We have considered the defendant’s remaining contentions and find them to be without merit. Lawrence, J. P., Eiber, O’Brien and Copertino, JJ., concur.