| People v Howard |
| 2008 NY Slip Op 03243 [50 AD3d 823] |
| April 8, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Martin Barabbas Howard, Appellant. |
—[*1] William V. Grady, District Attorney, Poughkeepsie, N.Y. (Bridget Rahilly Steller ofcounsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Dutchess County (Dolan, J.),rendered January 3, 2006, convicting him of robbery in the second degree, upon a jury verdict,and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branchof the defendant's omnibus motion which was to suppress identification testimony.
Ordered that the judgment is affirmed.
The hearing court did not err in denying that branch of the defendant's omnibus motionwhich was to suppress identification testimony. At the Wade hearing (see UnitedStates v Wade, 388 US 218 [1967]), the investigating detective described the manner inwhich the photographic array identification procedure was conducted. The evidence adduced atthe Wade hearing established that the various persons depicted in the computer-generatedphoto array were sufficiently similar in appearance to the defendant that the pretrial identificationprocedure was not unduly suggestive (see People v Ragunauth, 24 AD3d 472 [2005]; People vMalphurs, 111 AD2d 266, 267-268 [1985]).
Furthermore, the defendant's contention that the evidence was legally insufficient to establishhis guilt beyond a reasonable doubt is unpreserved for appellate review because he failed tomove for a trial order of dismissal (see CPL 290.10, 470.05 [2]; People v Dowling, 28 AD3d 788[2006]). In any event, viewing the evidence in the light most favorable to the prosecution (seePeople v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish thedefendant's guilt of robbery in the second degree beyond a reasonable doubt. Moreover, upon theexercise of our factual review power (see CPL 470.15 [5]), we are satisfied that theverdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
The defendant contends that the sentence imposed was excessive. However, since thedefendant received the minimum sentence permitted by law, this Court has no authority to reduceit as a matter of discretion in the interest of justice (see CPL 470.20 [6]; People v Wilson, 28 AD3d 796,797 [2006]; People v Muller, 294 AD2d 602 [2002]; People v Marrero, 278AD2d 135 [2000]). Skelos, J.P., Lifson, Santucci and Balkin, JJ., concur.