| People v Burroughs |
| 2012 NY Slip Op 05927 [98 AD3d 583] |
| August 8, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v LarryBurroughs, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Hae Jin Liu, Steven A. Bender, andRichard Longworth Hecht of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County (Warhit,J.), rendered October 22, 2010, convicting him of burglary in the second degree and petit larceny,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 defendant's contention that the photographic array identification procedure employed inthis case was unduly suggestive is without merit. "In determining whether a photographic arraywas 'unduly suggestive' the hearing court should consider whether there was any substantiallikelihood that the defendant would be singled out for identification" (People v Dunlap, 9 AD3d 434,435 [2004], quoting People v Chipp, 75 NY2d 327, 336 [1990]; see People v Brown, 89 AD3d1032, 1033 [2011]), and "[t]here is no requirement that the photograph of a defendant shownas part of a photo array be surrounded by photographs of individuals nearly identical inappearance" (People v Starks, 91AD3d 975, 975 [2012]). Here, the witness selected the defendant's photograph from an arraycontaining pictures of six individuals with similar characteristics, and none of the defendant'sphysical features depicted therein was so unusual as to single him out for identification (see People v Hewitt, 82 AD3d1119, 1120 [2011]; People vCurtis, 71 AD3d 1044, 1045 [2010]; People v Buckman, 66 AD3d 1400, 1401-1402 [2009]; Peoplev Stackhouse, 201 AD2d 686 [1994]).[*2]
The defendant's contention that a remark by theprosecutor during summation impermissibly shifted the burden of proof to the defendant isunpreserved for appellate review (seePeople v Romero, 7 NY3d 911, 912 [2006]; People v Paul, 82 AD3d 1267, 1267-1268 [2011]), and, in anyevent, does not warrant reversal (see People v Billups, 307 AD2d 323 [2003]).
In fulfilling our responsibility to conduct an independent review of the weight of theevidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we nevertheless accordgreat deference to the jury's opportunity to view the witnesses, hear the testimony, and observedemeanor (see People v Mateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946[2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here,we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633[2006]).
The defendant's remaining contention is without merit. Mastro, A.P.J., Skelos, Florio andHall, JJ., concur.