| People v Weston |
| 2011 NY Slip Op 03379 [83 AD3d 1511] |
| April 29, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Jamel Weston,Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti, A.J.),rendered May 18, 2007. The judgment convicted defendant, upon his plea of guilty, of robbery inthe first degree (two counts), robbery in the second degree, criminal possession of a weapon inthe second degree and criminal possession of a weapon in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his guilty plea of, inter alia,two counts of robbery in the first degree (Penal Law § 160.15 [2]), defendant contends thatthe photo array identification procedure in which his accomplice was the witness was undulysuggestive (see generally People v Chipp, 75 NY2d 327, 335 [1990], cert denied498 US 833 [1990]). We reject that contention. Because "the subjects depicted in the photo array[were] sufficiently similar in appearance so that the viewer's attention [was] not drawn to any onephotograph in such a way as to indicate that the police were urging a particular selection," thephoto array itself was not unduly suggestive (People v Quinones, 5 AD3d 1093, 1093 [2004], lv denied 3NY3d 646 [2004]). Likewise, the circumstances in which the police presented the photo arraywere not unduly suggestive. During his interview with the police, the accomplice indicated thathe knew the perpetrator by his nickname, "Ratchet." Upon presenting the photo array, the policeofficer asked the accomplice to identify the man he knew as "Ratchet" if he could do so, but theofficer neither told the accomplice that "Ratchet" was actually depicted in the photo array, nordid the officer instruct the accomplice that he was required to make an identification (see People v Floyd, 45 AD3d1457, 1459 [2007], lv denied 10 NY3d 811 [2008]). Present—Smith, J.P.,Centra, Peradotto, Gorski and Martoche, JJ.