| People v Cox |
| 2008 NY Slip Op 06718 [54 AD3d 684] |
| September 2, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Jermaine Cox, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn (Leonard Joblove and Keith Dolan of counsel),for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (D'Emic, J.),rendered June 16, 2005, convicting him of murder in the second degree, upon a jury verdict, andimposing sentence. The appeal brings up for review the denial, after a hearing, of that branch ofthe defendant's omnibus motion which was to suppress identification testimony.
Ordered that the judgment is affirmed.
The factual conclusions of the Supreme Court at a Wade hearing (see UnitedStates v Wade, 388 US 218 [1967]) that the defense witness's testimony was incredible andthat one of the eyewitnesses was not shown a photograph of the defendant prior to the lineup aresupported by the record, and therefore should not be disturbed on appeal (see People vProchilo, 41 NY2d 759, 761 [1977]; People v Brown, 194 AD2d 682 [1993]).Moreover, while lineup participants should have the same general physical characteristics asthose of the suspect, a defendant need not be surrounded by individuals nearly identical to him orher in appearance (see People v Chipp, 75 NY2d 327, 336 [1990], cert denied498 US 833 [1990]). Since the lineup participants were seated, resembled the defendant in attire,hair color, and skin tone, and wore clothing that did not accentuate differences in weight, minorvariations in height and weight did not render the lineup impermissibly suggestive or conduciveto mistaken identification (see People vDavis, 27 AD3d 761 [2006]; People v Peterkin, 27 AD3d 666, 667 [2006]; People v Gelzer,224 AD2d 443 [1996]).
The defendant's contention that the trial court erred in failing to provide an expanded [*2]identification charge is "unpreserved for appellate review as thedefense counsel waived any objection by acquiescing to the charge as given" (People v James, 35 AD3d 762[2006]; see CPL 470.05 [2]). In any event, the charge as given "sufficiently apprised thejury that the reasonable doubt standard applied to identification" (People v Knight, 87NY2d 873, 874-875 [1995]).
The defendant's challenge to the legal sufficiency of the evidence is unpreserved for appellatereview (see CPL 470.05 [2]; People v Gray, 86 NY2d 10, 20 [1995]). In anyevent, viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establish his guiltbeyond a reasonable doubt. Any discrepancies in the witnesses' trial testimony were not of suchmagnitude as to render their testimony incredible or unreliable as a matter of law (see People v Almonte, 23 AD3d392, 393 [2005]).
The defendant's contention that the People's summation remarks constituted reversible erroris without merit. All of the summation comments alleged to be inflammatory and prejudicialeither were fair comment on the evidence (see People v Ashwal, 39 NY2d 105 [1976]),or constituted harmless error (see People v Crimmins, 36 NY2d 230, 241-242 [1975]; People v Carter, 36 AD3d 624[2007]; People v Hill, 286 AD2d 777, 778 [2001]).
Finally, the defendant's allegations of ineffective assistance of counsel are without merit(see People v Baldi, 54 NY2d 137, 151-152 [1981]).
The defendant's remaining contention is unpreserved for appellate review and, in any event,does not require reversal. Skelos, J.P., Covello, Leventhal and Belen, JJ., concur.