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SIMS v. SULLIVAN

No. 405, Docket 88-2129.

867 F.2d 142 (1989)

Herbert SIMS, Petitioner-Appellant, v. James E. SULLIVAN, Superintendent, Sing Sing Correctional Facility; Robert Abrams, Attorney General of the State of New York; John J. Santucci, District Attorney, County of Queens, Respondents-Appellees.

United States Court of Appeals, Second Circuit.

Decided February 6, 1989.

Attorney(s) appearing for the Case

Robert E. Precht, The Legal Aid Soc., Federal Defender Services Unit, New York City, for petitioner-appellant.

Mark Osnowitz, Asst. Dist. Atty., Queens County, Kew Gardens, N.Y. (John J. Santucci, Dist. Atty. for Queens County, Kew Gardens, N.Y., of counsel), for respondents-appellees.

Before WINTER and MAHONEY, Circuit Judges, and METZNER, District Judge.

WINTER, Circuit Judge:

This appeal presents the question whether an in-court identification was so suggestive as to violate a defendant's due process right to fundamental fairness. We conclude that, although in some cases such an identification might be so unreliable and so crucial to the prosecution's case as to violate fundamental fairness, the petitioner's due process rights were not violated by the identification procedures used in the present case.

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