People v. Arroyo
Decision Date | 20 March 2007 |
Docket Number | 2003-03320. |
Citation | 38 A.D.3d 792,2007 NY Slip Op 02569,832 N.Y.S.2d 278 |
Parties | THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. BLADIMIL ARROYO, Appellant. |
Court | New York Supreme Court — Appellate Division |
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, any error by defense counsel at the Huntley hearing (see People v Huntley, 15 NY2d 72 [1965]) in waiving arguments regarding the voluntariness of the defendant's statements to the police, was not so "egregious and prejudicial" as to render counsel's performance ineffective, thereby compromising the defendant's right to a fair trial (People v Caban, 5 NY3d 143, 152 [2005]; see People v Hobot, 84 NY2d 1021, 1022 [1995]). No prejudice resulted since there was overwhelming evidence of the defendant's guilt (see People v Crimmins, 36 NY2d 230, 241-242 [1975]; People v Celleri, 29 AD3d 707, 708 [2006]).
The hearing court properly declined to suppress the lineup identification evidence (see People v Chipp, 75 NY2d 327, 336 [1990], cert denied 498 US 833 [1990]; People v Green, 14 AD3d 578 [2005]). While lineup participants should share the same general physical characteristics, there is no requirement that a suspect in a lineup be surrounded by persons who are nearly identical in appearance (see People v Chipp, supra; People v Green, supra). Here, the minor differences in the fill-ins' skin tones and clothing was insufficient to render the lineup unduly suggestive (see People v Chipp, supra; People v Torres, 309 AD2d 823 [2003]; People v Saunders, 306 AD2d 502 [2003]; People v Miller, 199 AD2d 422 [1993]).
The defendant's contention that the sentencing court improperly imposed a sentence based on crimes of which he was acquitted is unpreserved for appellate review (see CPL 470.05 [2]; People v Rambali, 27 AD3d 582 [2006]; People v Morgan, 27 AD3d 579 [2006]). In any event, this contention is without merit (see People v Morgan, supra).
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People v. Lewis
...render counsel's performance ineffective ( People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213;see People v. Arroyo, 38 A.D.3d 792, 792, 832 N.Y.S.2d 278). ...
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People v. Arroyo
...879 9 N.Y.3d 839 PEOPLE v. ARROYO (BLADIMIL). Court of Appeals of the State of New York. June 6, 2007. Appeal from the 2d Dept.: 38 A.D.3d 792, 832 N.Y.S.2d 278 Application for leave to Criminal appeal denied. (Read, J.) ...
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