Metro

Lack of 400-pounders in lineup gets large man’s conviction overturned

At 400 pounds, the scales of justice had to tip in his favor.

A convicted robber got a massive break today when an appeals court overturned his conviction, finding the lineup he was picked out of was unfair because it didn’t include any other 400-pound men.

Eric Kenley, 48, was “charged with two robberies that occurred on the same morning” in Lower Manhattan in 2007, the Appellate Division decision recounts.

The corpulent con was identified as the driver of the getaway car in both robberies. According to his criminal complaint, when the victim in the second robbery looked at him, he pulled out a handgun and told the person “to look straight ahead.”

The Appellate Division ruling says “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 heavyset [and] large'” – descriptions that certainly fit the 6-foot-4-inch Kenley.

However, those descriptions didn’t fit the other people in the lineup, none of whom were are as supersized as Kenley, the appeals court found.

“Although the fillers were large men, there was a very noticeable weight difference between defendant and the fillers,” the ruling said – so much so that normal police tricks for dealing with such problems didn’t work.

“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,” and that difference was too big for the appeals court to overlook.

They ordered Kenley, who state records show served 24 years behind bars on a 1981 murder conviction, to get new trials on the two convictions.

He stands more than a fat chance of beating the rap on the retrial – the Appellate Division explicitly nixed evidence from the lineup identifications.

The appeals court says it didn’t make the decision lightly, and it is not contending the police should stockpile fuller-sized fillers for future lineups.

“We do not mean to suggest that the police are obligated to find grossly overweight fillers when dealing with situation presented here, and we recognize the practical difficulties that would be involved in doing so,” the ruling says.

“Instead, this situation would call for the use of some kind of covering to conceal the weight difference.”

It’s unclear whether Kenley will be freed pending the retrial, or if he’s considered too big a flight risk.

His lawyer, Stanley Neustadter, did ot return a call for comment.