People v. Brown

• Decision Date: 22 November 2011
• Parties: The PEOPLE, etc., respondent, v. Shamei BROWN, appellant.
• Court: New York Supreme Court — Appellate Division

2011 N.Y. Slip Op. 08602

89 A.D.3d 1032

933 N.Y.S.2d 339

The PEOPLE, etc., respondent,

v.Shamei BROWN, appellant.

Supreme Court, Appellate Division, Second Department, New York.

Nov. 22, 2011.

Diane E. Selker, Peekskill, N.Y., for appellant.

Janet DiFiore, District Attorney, White Plains, N.Y. (Maria I. Wager and Richard Longworth Hecht of counsel), for respondent.

WILLIAM F. MASTRO, J.P., MARK C. DILLON, SANDRA L. SGROI, and ROBERT J. MILLER, JJ.

Appeal by the defendant from a judgment of the County Court, Westchester County (R. Bellantoni, J.), rendered January 26, 2007, convicting him of murder in the second degree, attempted murder in the second degree, assault in the first degree, and criminal possession of a weapon in the second 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 evidence.

ORDERED that the judgment is affirmed.

The hearing court properly denied that branch of the defendant's omnibus motion which was to suppress identification evidence. Successive photo arrays are not per se impermissibly suggestive ( see People v. Dunlap, 9 A.D.3d 434, 435, 780 N.Y.S.2d 171; People v. Galletti, 239 A.D.2d 598, 599, 658 N.Y.S.2d 80; People v. Daniels, 202 A.D.2d 987, 987, 612 N.Y.S.2d 984; People v. Thomas, 133 A.D.2d 867, 868, 520 N.Y.S.2d 421; People v. Sheirod, 124 A.D.2d 14, 18, 510 N.Y.S.2d 945). Further, the participants in the photo array were sufficiently similar to the defendant in appearance so that there was little likelihood that the defendant would be singled out for identification based on particular characteristics ( see People v. Ragunauth, 24 A.D.3d 472, 472, 805 N.Y.S.2d 654; People v. Wright, 297 A.D.2d 391, 391, 746 N.Y.S.2d 611; People v. Williams, 289 A.D.2d 270, 270–271, 734 N.Y.S.2d 463). There is also no requirement that a defendant in a lineup be surrounded by individuals nearly identical in appearance ( see People v. Chipp, 75 N.Y.2d 327, 336, 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. Granger, 18 A.D.3d 774, 774, 794 N.Y.S.2d 914; People v. Green, 14 A.D.3d 578, 578, 789 N.Y.S.2d 184). Here, the alleged variations in appearance between the fillers and the defendant were not so substantial as to render the lineup impermissibly suggestive ( see People v. Smith, 299 A.D.2d 566, 566–567, 751 N.Y.S.2d 498; People v. Blue, 267 A.D.2d 317, 318, 699 N.Y.S.2d 879; People v. Bryan, 228 A.D.2d 244, 244, 644 N.Y.S.2d 25; People v. Berry, 201 A.D.2d 489, 489–490, 607 N.Y.S.2d 401; People v. Simmons, 158 A.D.2d 950, 950, 551 N.Y.S.2d 110; cf. People v. Carolina, 184 A.D.2d 520, 520–521, 584 N.Y.S.2d 185; People v. Moore, 143 A.D.2d 1056, 1056, 533 N.Y.S.2d 602).

The defendant's contentions that his conviction was not supported by legally sufficient evidence and, in particular, that the People's theory of the case was improperly supported only by hearsay evidence, are unpreserved for appellate review ( see People v. Hawkins, 11 N.Y.3d 484, 491–492, 872 N.Y.S.2d 395, 900 N.E.2d 946). In any event, viewing the evidence in the light most favorable to the prosecution ( 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...