People v. Linder

• Decision Date: 07 February 2014
• Citation: 114 A.D.3d 1200,2014 N.Y. Slip Op. 00833,979 N.Y.S.2d 754
• Parties: The PEOPLE of the State of New York, Respondent, v. Adonis LINDER, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

114 A.D.3d 1200
979 N.Y.S.2d 754
2014 N.Y. Slip Op. 00833

The PEOPLE of the State of New York, Respondent,
v.
Adonis LINDER, Defendant–Appellant.

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

Feb. 7, 2014.

The Legal Aid Bureau of Buffalo, Inc., Buffalo (Susan C. Ministero of Counsel), for Defendant–Appellant.

[979 N.Y.S.2d 755]

Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of Counsel), for Respondent.

PRESENT: SMITH, J.P., LINDLEY, VALENTINO AND WHALEN, JJ.

MEMORANDUM:

On appeal from a judgment convicting him following a nonjury trial of assault in the second degree (Penal Law § 120.05[2] ), criminal possession of a weapon in the third degree (§ 265.02[3] ), and attempted robbery in the first degree (§§ 110.00, 160.15[2] ), defendant contends that County Court erred in failing to suppress identification evidence on the ground that it was the product of an unlawful detention. Although defendant's omnibus motion sought, inter alia, suppression of any and all evidence obtained by the police as a result of what he alleged to have been an unlawful detention, the court held only a Wade hearing and did not rule on the legality of the detention. By failing to seek a ruling on that part of his omnibus motion challenging the detention and by failing to object to the identification testimony on that ground at trial, defendant abandoned his challenge to the detention ( see People v. Adams, 90 A.D.3d 1508, 1509, 936 N.Y.S.2d 406, lv. denied18 N.Y.3d 954, 944 N.Y.S.2d 483, 967 N.E.2d 708; People v. Anderson, 52 A.D.3d 1320, 1321, 859 N.Y.S.2d 852, lv. denied11 N.Y.3d 733, 864 N.Y.S.2d 392, 894 N.E.2d 656). In any event, we note that “the factual assertions contained in defendant's moving papers were insufficient to warrant a hearing” on the issue of the alleged illegality of the detention (People v. Battle, 109 A.D.3d 1155, 1157, 971 N.Y.S.2d 627; see People v. Mendoza, 82 N.Y.2d 415, 425–427, 604 N.Y.S.2d 922, 624 N.E.2d 1017).

Having viewed a copy of the photo array shown by the police to the victims, we further conclude that the court properly determined that the array was not unduly suggestive, inasmuch as “the subjects depicted in the photo array are sufficiently similar in appearance so that the viewer's attention is not drawn to any one photograph in such a way as to indicate that the police were urging a particular selection” (People v. Quinones, 5 A.D.3d 1093, 1093, 773 N.Y.S.2d 671, lv. denied3 N.Y.3d 646, 782 N.Y.S.2d 417, 816 N.E.2d 207; see People v. Plumley, 111 A.D.3d 1418, 1420, 975 N.Y.S.2d 309). Nor was there any evidence at the Wade hearing indicating that the identification procedures employed by the police were unduly suggestive ( see People v. McCurty [Appeal No. 2], 60 A.D.3d 1406, 1407, 875 N.Y.S.2d 718, lv. denied12 N.Y.3d 856, 881 N.Y.S.2d 668, 909 N.E.2d 591).

Viewing the evidence in the light most...