| People v Greene |
| 2011 NY Slip Op 06139 [87 AD3d 551] |
| August 2, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v DavidGreene, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (William C. Milaccio, Lois CullenValerio, and Richard Longworth Hecht of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County(Wetzel, J.), rendered August 14, 2009, convicting him of murder in the second degree, criminalpossession of a weapon in the second degree, and criminal possession of a weapon in the thirddegree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial,after a hearing, of that branch of the defendant's omnibus motion which was to suppressidentification testimony.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the second photographic array was not undulysuggestive. "Two separate showings of a suspect's picture in successive photographic arrays arenot per se impermissibly suggestive," particularly where, as here, a different photograph of thedefendant was used and his photograph was placed in different locations in the successive arrays(People v Dunlap, 9 AD3d 434,435 [2004]). Moreover, the fillers in the second photo array were similar enough to the defendantin age and general appearance that there was little likelihood he would be singled out foridentification based on particular characteristics (see People v Avent, 29 AD3d 601 [2006]; People v Wright,297 AD2d 391 [2002]; People v Rivera, 265 AD2d 509 [1999]). Accordingly, thehearing court properly denied that branch of the defendant's omnibus motion which was tosuppress identification testimony.
The trial court properly refused to instruct the jury with respect to manslaughter in the seconddegree as a lesser-included offense of intentional murder (see CPL 300.50; People v Bey, 71 AD3d 1156[2010]). Under no reasonable view of the evidence could the jury have found that the defendantcommitted the lesser offense but not the greater (see People v Bey, 71 AD3d at 1156; People v Rivera, 2 AD3d 542, 543[2003]; People v Jackson, 202 AD2d 518, 519 [1994]).
The trial court's response to the jury's note asking for a fuller explanation of the element ofintent was meaningful and proper (see People v Steinberg, 79 NY2d 673, 684 [1992]).Additionally, a missing witness charge was not warranted in light of the witness's lack ofcooperation with law enforcement officials and refusal to testify or effectively communicate with[*2]the prosecution or police (see People v Bryant, 11 AD3d 630, 631 [2004]; People vPorter, 268 AD2d 538 [2000]). The defendant's contention that he was deprived of a fair trialby the trial court's comments, made upon ruling on the People's objections to two of defensecounsel's summation remarks, is not preserved for appellate review (see CPL 470.05 [2];People v Balls, 69 NY2d 641, 642 [1986]; cf. People v Salnave, 41 AD3d 872, 874 [2007]) and, in any event,is without merit.
The defendant's remaining contentions are without merit. Rivera, J.P., Covello, Florio andLott, JJ., concur.