| People v Adams |
| 2012 NY Slip Op 04877 [96 AD3d 1588] |
| June 15, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Marquil L.Adams, Appellant. |
—[*1] Marquil L. Adams, defendant-appellant pro se. Frank A. Sedita, III, District Attorney, Buffalo (Ashley R. Small of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Penny M. Wolfgang, J.),rendered November 29, 2010. The judgment convicted defendant, upon a jury verdict, of robberyin the first degree and robbery in the second degree.
It is hereby ordered that the case is held, the decision is reserved and the matter is remitted toSupreme Court, Erie County, for further proceedings.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofrobbery in the first degree (Penal Law § 160.15 [4]) and robbery in the second degree(§ 160.10 [1]). Contrary to defendant's contention, we conclude that the evidence, whenviewed in the light most favorable to the People (see People v Contes, 60 NY2d 620, 621[1983]), is legally sufficient to establish his identity as one of the perpetrators of the robbery (see People v Brown, 92 AD3d1216-1217 [2012], lv denied 18 NY3d 992 [2012]). We further conclude that theverdict is not against the weight of the evidence on the issue of identification (see People v Young, 74 AD3d1471, 1472 [2010], lv denied 15 NY3d 811 [2010]; see generally People vBleakley, 69 NY2d 490, 495 [1987]).
Defendant also contends that the pretrial identification by the robbery victim from a photoarray should have been suppressed as the fruit of an illegal arrest (see generally People v Hill, 53 AD3d1151, 1151 [2008]; People v Robinson, 282 AD2d 75, 79-82 [2001]). In its ruling ondefendant's suppression motion, Supreme Court concluded that the photo array procedure wasnot unduly suggestive, but failed to address the legality of defendant's detention or arrest. "CPL470.15 (1) precludes [this Court] from reviewing an issue that was either decided in anappellant's favor or was not decided by the trial court" (People v Ingram, 18 NY3d 948, 949 [2012]; see People vLaFontaine, 92 NY2d 470, 474 [1998], rearg denied 93 NY2d 849 [1999]). Thus, wemay not resolve defendant's contention regarding a theory not addressed by the court. Wetherefore hold the case, reserve decision and remit the matter to Supreme Court to determinewhether the identification testimony should be suppressed as the fruit of an illegal detention orarrest (see generally People vChattley, 89 AD3d 1557, 1558 [2011]). Present—Smith, J.P., Fahey, Peradotto,Sconiers and Martoche, JJ.