| People v Smiley |
| 2008 NY Slip Op 02398 [49 AD3d 1299] |
| March 14, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v VernellSmiley, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (Michael J. Manfredi of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Anthony F. Aloi, J.), renderedSeptember 17, 2004. The judgment convicted defendant, upon his plea of guilty, of rape in thefirst degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty,of rape in the first degree (Penal Law § 130.35 [1]). Defendant's sole contention on appealis that County Court erred in denying that part of defendant's omnibus motion seeking tosuppress the identification testimony of two witnesses on the ground that the photo array used inthe pretrial identification procedures was unduly suggestive. That contention is without merit. "Aphoto array is unduly suggestive 'where some characteristic of one picture draws the viewer'sattention to it, indicating that the police have made a particular selection' " (People v Diggs, 19 AD3d 1098,1098 [2005], lv denied 5 NY3d 787 [2005], rearg granted and order amended 21AD3d 1438 [2005], quoting People v Robert, 184 AD2d 597, 598 [1992], lvdenied 80 NY2d 933 [1992]). Here, "[t]he composition and presentation of the photo arraywere such that there was no reasonable possibility that the attention of the witness[es] would bedrawn to defendant as the suspect chosen by the police" (People v Sylvester, 32 AD3d 1226, 1227 [2006], lv denied7 NY3d 929 [2006]; see People vDean, 28 AD3d 1118 [2006], lv denied 7 NY3d 787 [2006]; see generallyPeople v Chipp, 75 NY2d 327, 335-336 [1990], cert denied 498 US 833 [1990]).Contrary to defendant's contention, the differences in skin tone and head size of the individualsdepicted in the photo array were not so great as to indicate that the police were urging a particularselection (see People v Quinones, 5AD3d 1093, 1093-1094 [2004], lv denied 3 NY3d 646 [2004]; People vBoria, 279 AD2d 585, 586 [2001], lv denied 96 NY2d 781 [2001]).Present—Martoche, J.P., Smith, Peradotto, Pine and Gorski, JJ.