| People v Walden |
| 2007 NYSlipOp 00784 |
| February 2, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Jerald Ellis Walden, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Stephen X. O'Brien of counsel), for plaintiff-respondent.
Appeal from a judgment of the Supreme Court, Monroe County (Stephen R. Sirkin, A.J.), rendered May 12, 2003. The judgment convicted defendant, upon his plea of guilty, of robbery in the third degree.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of robbery in the third degree (Penal Law § 160.05), defendant contends that the identification procedure was impermissibly suggestive because the victim was shown two photo arrays within a three-day period. We reject that contention (see generally People v Chipp, 75 NY2d 327, 335-336 [1990], cert denied 498 US 833 [1990]). The victim identified defendant in the first photo array, which contained black-and-white photographs, and her identification of defendant in the second photo array, which contained color photographs but otherwise was identical to the first photo array, was merely confirmatory of the first identification (see People v Floyd, 135 AD2d 650 [1987], lv denied 70 NY2d 1006 [1988]; see generally People v Rodriguez, 64 NY2d 738, 740-741 [1984]). Present—Hurlbutt, J.P., Gorski, Lunn, Peradotto and Green, JJ.