| People v Jean-Baptiste |
| 2008 NY Slip Op 09620 [57 AD3d 566] |
| December 2, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v FrantzyJean-Baptiste, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Sholom J. Twersky, andChristopher J. Roche of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Del Giudice, J.),rendered September 21, 2006, convicting him of robbery in the first degree and robbery in the seconddegree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after ahearing, of that branch of the defendant's omnibus motion which was to suppress identificationtestimony.
Ordered that the judgment is affirmed.
The defendant's challenge to the legal sufficiency of the evidence supporting his convictions ofrobbery in the first degree and robbery in the second degree is unpreserved for appellate review(see CPL 470.05 [2]; People v Finger, 95 NY2d 894, 895 [2000]; People vGray, 86 NY2d 10, 19-21 [1995]). In any event, viewing the evidence in the light most favorableto the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legallysufficient to establish the defendant's guilt beyond a reasonable doubt. In fulfilling our responsibility toconduct an independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342[2007]), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hearthe testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410 [2004],cert denied 542 US 946 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]).Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight ofthe evidence (see People v Romero, 7NY3d 633 [2006]).[*2]
The hearing court properly declined to suppress lineupidentification evidence (see People v Chipp, 75 NY2d 327, 336 [1990], cert denied498 US 833 [1990]). "While the fillers used in a lineup must be sufficiently similar to the defendant sothat no characteristic or visual clue would orient the viewer toward the defendant as a perpetrator of thecrimes charged (see People v Lundquist, 151 AD2d 505, 506), there is no requirement that adefendant in a lineup be accompanied by individuals nearly identical in appearance" (People vCintron, 226 AD2d 390, 390-391 [1996]). The fact that the defendant was the only one in thelineup wearing a blue striped shirt was not so unduly suggestive of his identity as to create a substantiallikelihood of irreparable misidentification because there is no evidence that his clothing figuredprominently in the witness' description of the perpetrator (see People v Jordan, 44 AD3d 875, 876 [2007]; People v Torres,309 AD2d 823, 824 [2003]). Moreover, the defendant's physical characteristics were sufficientlysimilar to the other participants in the lineup as to negate any likelihood that the defendant would besingled out for identification (see People v Jackson, 98 NY2d 555, 559 [2002]; People v Arroyo, 38 AD3d 792, 793[2007]; People v Davis, 27 AD3d761 [2006]; People v Peterkin, 27AD3d 666, 667 [2006]; People v Gelzer, 224 AD2d 443 [1996]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80, 85-86[1982]). Spolzino, J.P., Covello, Angiolillo and Chambers, JJ., concur.