| People v Jordan |
| 2007 NY Slip Op 07864 [44 AD3d 875] |
| October 16, 2007 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Reginald Jordan, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Jodi L. Mandel, andTziyonah Langsam of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Chambers,J.), rendered November 17, 2005, convicting him of murder in the second degree, upon a juryverdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, ofthat branch of the defendant's omnibus motion which was to suppress identification testimony.
Ordered that the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to establish his guilt ofmurder in the second degree because the identification testimony of the only witness wasunreliable, and the testimony of the detective was patently tailored to nullify constitutionalobjections, is unpreserved for appellate review (see CPL 470.05 [2]; People vGray, 86 NY2d 10 [1995]; People v Udzinski, 146 AD2d 245 [1989]). In any event,the defendant's contention is without merit (see People v Hay, 37 AD3d 494 [2007], lv denied 8 NY3d985 [2007]; People v Vecchio, 31AD3d 674 [2006]; People vMercer, 17 AD3d 607 [2005]). Viewing the evidence in the light most favorable to theprosecution, we find that it was legally sufficient to establish his guilt beyond a reasonable doubt(see People v Contes, 60 NY2d 620 [1983]). Any alleged inconsistencies between thegrand jury testimony of the identifying witness and his trial testimony were not of suchmagnitude as to render his trial testimony incredible or unreliable as a matter of law (see People v Almonte, 23 AD3d392, 393 [2005]; People vCarver, 3 AD3d 503 [2004]). To the contrary, these inconsistencies were matters to beconsidered by the jury in assessing his credibility (see People v Betts, 292 AD2d 539[2002]; People v Lambert, 272 AD2d 413, 414 [2000]).[*2]
The hearing court properly declined to suppress lineupidentification evidence (see People v Chipp, 75 NY2d 327, 336 [1990], certdenied 498 US 833 [1990]; People vGreen, 14 AD3d 578 [2005]). "While the fillers used in a lineup must be sufficientlysimilar to the defendant so that no characteristic or visual clue would orient the viewer towardthe defendant as a perpetrator of the crimes charged (see, People v Lundquist, 151 AD2d505, 506), there is no requirement that a defendant in a lineup be accompanied by individualsnearly identical in appearance" (People v Cintron, 226 AD2d 390, 390-391 [1996]). Thefact that the defendant was the only one in the lineup wearing a white jacket was not so undulysuggestive of his identity as to create a substantial likelihood of irreparable misidentificationbecause there is no evidence that his clothing figured prominently in the witness' description ofthe perpetrator (see People v Torres, 309 AD2d 823 [2003]; People v Foster, 272AD2d 410, 411 [2000]; People v Tinnen, 238 AD2d 615, 616 [1997]).
The defendant was afforded the effective assistance of counsel. Taking into consideration thetotality of the evidence, the law, and the circumstances of the case, it is evident that trial counselprovided meaningful representation (see People v Benevento, 91 NY2d 708, 712 [1998];People v Hightower, 35 AD3d884 [2006]; People v Grey, 34AD3d 832, 833 [2006], lv denied 9 NY3d 865 [2007]). Moreover, the defendantfailed to demonstrate "the absence of strategic or other legitimate explanations" (People vRivera, 71 NY2d 705, 709 [1988]) for the failure of trial counsel to request aRodriguez hearing (see People v Rodriguez, 79 NY2d 445, 449-550 [1992];People v Anderson, 305 AD2d 611, 612 [2003]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).Ritter, J.P., Santucci, Goldstein and Dillon, JJ., concur.