| People v Stallings |
| 2008 NY Slip Op 07272 [54 AD3d 1064] |
| September 30, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v EricStallings, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Laurie Sapakoff, Richard LongworthHecht, and Anthony J. Servino of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County (R.Bellantoni, J.), rendered August 23, 2006, convicting him of unauthorized use of a vehicle in thesecond degree, upon a jury verdict, and imposing sentence. The appeal brings up for review thedenial, after a hearing (Adler, J.), of that branch of the defendant's omnibus motion which was tosuppress identification testimony.
Ordered that the judgment is affirmed.
The hearing court properly declined to suppress the complainant's identification testimony.Contrary to the defendant's contention, the photo array that was shown to the complainant wasnot unduly suggestive, as the individuals in the photo array were sufficiently similar inappearance to him (see People v Lee, 96 NY2d 157, 163 [2001]; People v Mitchell,47 AD3d 951 [2008]; People v Miller, 33 AD3d 728, 728-729 [2006]).
The defendant's contention that the trial court failed to adequately instruct the jury onpresumption pursuant to Penal Law § 165.05 (1) is unpreserved for appellate review sincehe did not request any additional instruction, nor did he object to the charge as given (seeCPL 470.05 [2]; People v Williams, 38 AD3d 925, 926 [2007]). In any event, thecontention is without merit because the trial court followed the New York Criminal JuryInstructions (see CJI[NY] Penal Law § 165.05 [1]), and its charge was thoroughand not misleading (see People v Thomas, 242 AD2d 280 [1997]; People v Rivers,140 AD2d 897, [*2]898 [1988]). Moreover, the trial courtcorrectly explained that the presumption was merely permissible (see People v Rivers,140 AD2d at 898).
Upon the exercise of our factual review power (see CPL 470.15 [5]), we are satisfiedthat the verdict of guilt was not against the weight of the evidence (see People v Danielson,9 NY3d 342, 349 [2007]; People v Romero, 7 NY3d 633 [2006]).
Contrary to the defendant's contention, he was not denied the effective assistance of counsel,since the record as a whole demonstrates that he received meaningful representation (seePeople v Benevento, 91 NY2d 708, 713 [1998]; People v Baldi, 54 NY2d 137, 147[1981]; People v Waisome, 40 AD3d 892 [2007]). Skelos, J.P., Covello, Balkin andDickerson, JJ., concur.