| People v Lago |
| 2009 NY Slip Op 01819 [60 AD3d 784] |
| March 10, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Joseph Lago, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Steven A. Hovani, Meghan E.Connelly, and Guy Arcidiacono of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (Mullen,J.), rendered January 18, 2007, convicting him of manslaughter in the second degree (twocounts), vehicular manslaughter in the first degree (six counts), vehicular assault in the firstdegree (three counts), operating a motor vehicle while intoxicated (three counts), aggravatedunlicensed operation of a motor vehicle in the first degree (three counts), reckless driving, andspeeding, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that the photo array identification procedure was undulysuggestive is unpreserved for appellate review, since he failed at the Wade hearing(see United States v Wade, 388 US 218 [1967]) to raise the specific grounds upon whichhe now challenges the procedure (see CPL 470.05 [2]; People v Warren, 50 AD3d 706[2008]). In any event, the evidence adduced at the hearing established that the various personsdepicted in the computer-generated photo array were sufficiently similar in appearance to thedefendant such that the pretrial identification procedure was not unduly suggestive (see People v Howard, 50 AD3d823 [2008]; People vRagunauth, 24 AD3d 472 [2005]). Further, contrary to the defendant's contention, theadmission of testimony at trial regarding the photo array identification procedure did not denyhim a fair trial since defense counsel opened the door to the issue as a trial tactic during hisopening statement (see People vVasquez, 33 AD3d 636 [2006]; People v Norris, 5 AD3d 796 [2004]; People v Martinez, 1 AD3d 611[2003]).[*2]
The defendant's claim that the People violated theirdisclosure obligations under Brady v Maryland (373 US 83 [1963]) is based on factualassertions outside the record and, thus, is not reviewable on this appeal (see People v Purdie, 50 AD3d1065 [2008]; People vWilliams, 43 AD3d 729 [2007]).
The defendant's remaining contentions are unpreserved for appellate review and, in anyevent, are without merit. Skelos, J.P., Santucci, Balkin and Eng, JJ., concur.