| People v Matthews |
| 2008 NY Slip Op 10640 [57 AD3d 1008] |
| December 30, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Lonnie Matthews, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Jodi L. Mandel, andDavid M. Cheifetz of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Heffernan,J.), rendered June 12, 2006, convicting him of burglary in the second degree, after a nonjury trial,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 evidence.
Ordered that the judgment is affirmed.
Generally, a photographic display is suggestive when something about the defendant asdepicted is likely to draw the viewer's attention to his or her photograph so as to indicate that thepolice regard the defendant as the perpetrator (see People v Ferguson, 55 AD3d 926[2008]; People v Miller, 33 AD3d 728, 728-729 [2006]). There is no suggestion here thatthe display shown to the complainant was suggestive. Moreover, although the participants in alineup should all share the same general physical characteristics, there is no requirement that thedefendant be surrounded by persons of nearly identical appearance (see People v Kirby,34 AD3d 695 [2006]; People v Green, 14 AD3d 578 [2005]). Here, the photograph takenof the "double-blind" lineup viewed by the complainant depicts six males of the same race,relatively close in age, with facial hair and similar skin tones, each wearing a white baseball cap.No disparity in their heights is apparent as they are all seated. Their weights appear to vary, butnot significantly. The lineup report, which lists each participant's age, height, and weight, bearsout that they were of relatively similar [*2]appearance.Accordingly, inasmuch as the identification procedures were not such as to create a substantiallikelihood that the defendant would be singled out for identification, that branch of his omnibusmotion which was to suppress identification evidence was properly denied (see People vChipp, 75 NY2d 327 [1990], cert denied 498 US 833 [1990]; People v Solis,43 AD3d 1190 [2007]).
The defendant's contention that the evidence was legally insufficient to support hisconviction for burglary in the second degree is unpreserved for appellate review (see CPL470.05 [2]; People v Hawkins, 11 NY3d 484 [2008]; People v Gray, 86 NY2d10, 20 [1995]). In any event, viewing the evidence in the light most favorable to the prosecution(see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient toestablish the defendant's guilt beyond a reasonable doubt. Moreover, in fulfilling ourresponsibility to conduct an independent review of the weight of the evidence (see CPL470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we nevertheless accord greatdeference to the factfinder's opportunity to view the witnesses, hear the testimony, and observedemeanor (cf. People v Mateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946[2004]; People v Moghaddam, 56 AD3d 801 [2008]). Upon reviewing the record here,we are satisfied that the verdict of guilt was not against the weight of the evidence (seePeople v Romero, 7 NY3d 633 [2006]). Spolzino, J.P., Fisher, Miller and Carni, JJ., concur.