| People v Brown |
| 2011 NY Slip Op 08602 [89 AD3d 1032] |
| November 22, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v ShameiBrown, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Maria I. Wager and Richard LongworthHecht of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County (R. Bellantoni,J.), rendered January 26, 2007, convicting him of murder in the second degree, attempted murder inthe second degree, assault in the first degree, and criminal possession of a weapon 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 identificationevidence.
Ordered that the judgment is affirmed.
The hearing court properly denied that branch of the defendant's omnibus motion which was tosuppress identification evidence. Successive photo arrays are not per se impermissibly suggestive (see People v Dunlap, 9 AD3d 434,435 [2004]; People v Galletti, 239 AD2d 598, 599 [1997]; People v Daniels, 202AD2d 987 [1994]; People v Thomas, 133 AD2d 867, 868 [1987]; People v Sheirod,124 AD2d 14, 18 [1987]). Further, the participants in the photo array were sufficiently similar to thedefendant in appearance so that there was little likelihood that the defendant would be singled out foridentification based on particular characteristics (see People v Ragunauth, 24 AD3d 472, 472 [2005]; People vWright, 297 AD2d 391, 391 [2002]; People v Williams, 289 AD2d 270, 270-271[2001]). There is also no requirement that a defendant in a lineup be surrounded by individuals nearlyidentical in appearance (see People v Chipp, 75 NY2d 327, 336 [1990], cert denied498 US 833 [1990]; People v Granger,18 AD3d 774, 774 [2005]; People vGreen, 14 AD3d 578, 578 [2005]). Here, the alleged variations in appearance between thefillers and the defendant were not so substantial as to render the lineup impermissibly suggestive(see People v Smith, 299 AD2d 566, 566-567 [2002]; People v Blue, 267 AD2d317, 318 [1999]; People v Bryan, 228 AD2d 244 [1996]; People v Berry, 201AD2d 489, 489-490 [1994]; People v Simmons, 158 AD2d 950 [1990]; cf. People vCarolina, 184 AD2d 520, 520-521 [1992]; People v Moore, 143 AD2d 1056 [1988]).
The defendant's contentions that his conviction was not supported by legally sufficient evidenceand, in particular, that the People's theory of the case was improperly supported only by hearsayevidence, are unpreserved for appellate review (see People v Hawkins, 11 NY3d 484, 491-492 [2008]). In any event,viewing the evidence in the light most favorable to the prosecution (see [*2]People v Contes, 60 NY2d 620 [1983]), we find that it was legallysufficient to establish the defendant's guilt beyond a reasonable doubt of the crimes charged. Moreover,upon our independent review pursuant to CPL 470.15 (5), we are satisfied that the verdict of guilt wasnot against the weight of the evidence (seePeople v Romero, 7 NY3d 633 [2006]). Mastro, J.P., Dillon, Sgroi and Miller, JJ., concur.