| People v Rosenberg |
| 2007 NY Slip Op 09923 [46 AD3d 357] |
| December 18, 2007 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Jeanyll Rosenberg, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Julie Paltrowitz of counsel), forrespondent.
Judgment, Supreme Court, New York County (Bonnie G. Wittner, J., at suppression hearing;James A. Yates, J., at jury trial and sentence), rendered May 19, 2004, convicting defendant ofrobbery in the first and second degrees, and sentencing him to concurrent terms of 10 years,unanimously affirmed.
Defendant failed to preserve his legal sufficiency argument, and we decline to review it in theinterest of justice. Were we to review this claim, we would find the verdict supported by legallysufficient evidence. We also find that it was not against the weight of the evidence. On thecontrary, we conclude there was overwhelming evidence of defendant's guilt, including that hewas arrested in possession of an unusual shotgun used in this robbery. There is no basis fordisturbing the jury's determinations concerning identification and credibility (see People vBleakley, 69 NY2d 490, 495 [1987]). Any discrepancies in the identifying witness'sdescription of defendant were readily explained, and they were not sufficiently significant torender the identification unreliable.
Although the victim's identification of the codefendant, who was not on trial, was notrelevant to any material issue and should have been excluded, the error was harmless (seePeople v Jenkins, 305 AD2d 287 [2003], lv denied 100 NY2d 621 [2003]).
The court properly denied defendant's motion to suppress identification testimony. Therecord supports the hearing court's finding that, in both the photo array and the lineup, there wasno readily apparent or sufficiently significant difference between defendant's appearance and thatof the fillers to cause him to be wrongly singled out for identification (see People vChipp, 75 NY2d 327, 336 [1990], cert denied 498 US 833 [1990]). Defendant'sassertion that another [*2]person may have influenced thewitness's identification of defendant rests only on speculation. Concur—Mazzarelli, J.P.,Saxe, Marlow, Catterson and Malone, JJ.