| People v Starks |
| 2012 NY Slip Op 00813 [91 AD3d 975] |
| Jnury 31, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v KyareStarks, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Laurie K. Gibbons, Kathleen M. Egan,and Joanna Hershey of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Nassau County (Peck, J.),rendered December 21, 2010, convicting him of robbery in the second degree (two counts) andgrand larceny in the fourth degree, after a nonjury trial, and imposing sentence. The appeal bringsup for review the denial, after a hearing (St. George, J.), of those branches of the defendant'somnibus motion which were to suppress physical evidence and identification testimony.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the photographic array was not unduly suggestive.There is no requirement that the photograph of a defendant shown as part of a photo array besurrounded by photographs of individuals nearly identical in appearance (see People vChipp, 75 NY2d 327, 336 [1990], cert denied 498 US 833 [1990]; People v Brown, 89 AD3d 1032,1032 [2011]). Here, the alleged variations in appearance between the photographs of otherpersons depicted in the photo array and that of the defendant were not so substantial as to renderthe photo array impermissibly suggestive (see People v Chipp, 75 NY2d at 336; People v Alonge, 74 AD3d 1354,1355 [2010]; People v Biesty, 228 AD2d 608 [1996]). Accordingly, that branch of thedefendant's omnibus motion which was to suppress identification testimony was properly denied.
The hearing court also properly denied that branch of the defendant's omnibus motion whichwas to suppress physical evidence seized after his arrest on January 7, 2010, on the basis that thepolice lacked probable cause to arrest him. The evidence adduced at the hearing established thatthe defendant's grandmother, who lived in the apartment with her two grandsons, gave consentfor the police to enter (see People vRead, 74 AD3d 1245, 1246 [2010]). The evidence further established that thegrandmother's consent was voluntarily given and was not the product of coercion (see People v Quagliata, 53 AD3d670, 672 [2008]; People vSinzheimer, 15 AD3d 732 [2005]). Given the grandmother's valid consent, it wasunnecessary to produce evidence establishing that the police had probable cause to enter herapartment (see People v Hodge, 44 NY2d 553, 559 [1978]; People v Campbell,271 AD2d 693 [2000]). Once inside the apartment, the police had probable cause to arrest thedefendant. He matched the description of the perpetrator, and was holding a cell phone whichmatched the color and brand [*2]of the stolen phone given by oneof the victims. Prior to the defendant's arrest, a detective called the phone number associated withthe stolen phone, and the phone in the defendant's possession rang (see People v McRay,51 NY2d 594, 602 [1980]).
The defendant also contends that the County Court improperly amended the indictment. Wedisagree. Amendments to identify the name of the victim or to clarify the objects forcibly takenare permissible (see CPL 200.70 [1]; People v Spann, 56 NY2d 469, 473-474[1982]; People v Jones, 41 AD3d507, 508 [2007]; People v Goodman, 156 AD2d 713, 714 [1989]; People vBarnes, 119 AD2d 828, 829 [1986]). Moreover, because there was evidence to support thedefendant's affirmative defense that the weapon used in the robbery was a BB gun and not a realfirearm, the County Court properly considered the lesser-included offense of robbery in thesecond degree (see Penal Law § 160.10 [2] [b]; § 160.15 [4]; People vFord, 62 NY2d 275, 280 [1984]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).Skelos, J.P., Dickerson, Austin and Miller, JJ., concur.