People v. Curtis

• Decision Date: 23 March 2010
• Citation: 71 A.D.3d 1044,900 N.Y.S.2d 68
• Parties: The PEOPLE, etc., respondent, v. Keane CURTIS, appellant.
• Court: New York Supreme Court — Appellate Division

900 N.Y.S.2d 68

71 A.D.3d 1044

The PEOPLE, etc., respondent,

v.Keane CURTIS, appellant.

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

March 23, 2010.

Salvatore C. Adamo, New York, N.Y., for appellant.

William V. Grady, District Attorney, Poughkeepsie, N.Y. (Joan H. McCarthy of counsel), for respondent.

REINALDO E. RIVERA, J.P., DANIEL D. ANGIOLILLO, THOMAS A. DICKERSON, and SHERI S. ROMAN, JJ.

Appeal by the defendant from a judgment of the County Court, Dutchess County (Dolan, J.), rendered May 6, 2008, convicting him of robbery in the first degree (two counts), robbery in the second degree (three counts), and burglary in the firstdegree (three counts), 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 hearing court properly denied that branch of the defendant's omnibus motion which was to suppress identificationtestimony. A photographic array is suggestive where some characteristic of an individual's picture draws the viewer's attention to it, indicating that the police have made a particular selection ( see People v. Wright, 297 A.D.2d 391, 746 N.Y.S.2d 611; People v. Williams, 289 A.D.2d 270, 270-271, 734 N.Y.S.2d 463; People v. Cherry, 150 A.D.2d 475, 475-476, 541 N.Y.S.2d 78). Contrary to the defendant's contention, the various persons depicted in the photographic array used in the pretrial identification procedure were sufficiently similar in appearance to the defendant that there was little likelihood the defendant would be singled out for identification based on particular characteristics ( see People v. Howard, 50 A.D.3d 823, 854 N.Y.S.2d 776; People v. Ragunauth, 24 A.D.3d 472, 805 N.Y.S.2d 654; People v. Burke, 251 A.D.2d 424, 674 N.Y.S.2d 699).

The defendant's contention that the evidence was legally insufficient to sustain his conviction is unpreserved for appellate review ( see CPL 470.05[2]; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946; People v. Huertas, 65 A.D.3d 594, 883 N.Y.S.2d 716). 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 defendant's guilt beyond a reasonable doubt. In fulfilling our responsibility to conduct an independent review of the weight of the evidence ( see CPL 470.15[5]; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe their demeanor ( see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053, cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828; People v. Bleakley, 69 N.Y.2d...