People v. Blue

• Decision Date: 13 December 1999
• Parties: 1999 N.Y. Slip Op. 10,797 The PEOPLE, etc., respondent, v. Kawan BLUE, appellant.
• Court: New York Supreme Court — Appellate Division

Page 879

699 N.Y.S.2d 879

1999 N.Y. Slip Op. 10,797

The PEOPLE, etc., respondent, v. Kawan BLUE, appellant.

Supreme Court, Appellate Division Second Department, New York.

Dec. 13, 1999.

Pamela D. Hayes, New York, N.Y., for appellant.

Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Roseann B. MacKechnie and Jodi L. Mandel of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Friedman, J.), rendered July 25, 1995, convicting him of robbery in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress identification testimony.

ORDERED that the judgment is affirmed.

The defendant has failed to preserve for appellate review his contention that the evidence was legally insufficient to establish his guilt (see, CPL 470.05; People v. Gray, 86 N.Y.2d 10, 629 N.Y.S.2d 173, 652 N.E.2d 919; People v. Udzinski, 146 A.D.2d 245, 541 N.Y.S.2d 9). In any event, viewing the evidence in the light most favorable to the People (see, People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.

The hearing court properly denied that branch of the defendant's omnibus motion which was to suppress identification testimony. A photographic array is suggestive when some characteristic of an individual's picture draws the viewer's attention to that picture indicating that the police have made a particular selection. Contrary to the defendant's contention, there is no indication that the manner in which the photographs were displayed was unduly suggestive or that the defendant differed significantly from the photograph fillers (see, Matter of James H., 34 N.Y.2d 814, 359 N.Y.S.2d 48, 316 N.E.2d 334; People v. Rawlings, 159 A.D.2d 655, 553 N.Y.S.2d 42).

While lineup participants should have the same general physical characteristics as those of the suspect, there is no requirement that a defendant be surrounded by individuals nearly identical to him in appearance (see, People v. Chipp, 75 N.Y.2d 327, 335, 553 N.Y.S.2d 72, 552 N.E.2d 608, cert. denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70; People v. Rodriguez, 64 N.Y.2d 738, 740-741, 485 N.Y.S.2d 976, 475 N.E.2d 443; People v. Folk, 233 A.D.2d 462, 650 N.Y.S.2d 272; People v. Christenson, 188 A.D.2d 659, 591 N.Y.S.2d 507). ...