| People v Flores |
| 2013 NY Slip Op 00106 [102 AD3d 707] |
| January 9, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Cesar Flores, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Johnnette Traill, and Kristina Sapaskis of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Hollie, J.), rendered November 24, 2008, convicting him of assault in the first degree,gang assault in the first degree, assault in the second degree, and criminal possession of aweapon in the fourth degree, upon a jury verdict, and imposing sentence. The appealbrings up for review the denial, after a hearing (Latella, J.), of that branch of thedefendant's omnibus motion which was to suppress identification testimony.
Ordered that the judgment is modified, on the law, by vacating the conviction ofassault in the second degree, vacating the sentence imposed thereon, and dismissing thatcount of the indictment; as so modified, the judgment is affirmed.
Contrary to the defendant's contention, the photographic identification procedureemployed here was not unduly suggestive. "There is no requirement that the defendant besurrounded by individuals nearly identical to him in appearance during identificationprocedures" (People v Price, 256 AD2d 596, 597 [1998]; see People v Ragunauth, 24AD3d 472, 472 [2005]). Here, the photographic array contained photographs ofindividuals whose appearance was such that there was little likelihood the defendantwould be singled out for identification based on particular characteristics (see People v Greene, 87 AD3d551, 551 [2011]; People vAvent, 29 AD3d 601, 601 [2006]; People v Ragunauth, 24 AD3d at472-473). The other participants in the photo array were near the defendant in age andwere similar to the defendant in skin tone, hair color, and build, and each had a smalltattoo on the right side of his neck that was only partially visible in the photographs.While each of the participants had slightly different hair styles and tattoos, nothing aboutthe defendant's appearance was "likely to draw the viewer's attention to his. . . photograph so as to indicate that the police regard[ed] the defendant asthe perpetrator" (People vMatthews, 57 AD3d 1008, 1008 [2008]).
The defendant's contention that the Supreme Court committed reversible error bydenying his challenge for cause to one of the prospective jurors also is without merit(see generally CPL 270.20 [1] [b]; People v Williams, 63 NY2d 882[1984]). " 'The determination as to whether a prospective juror can provide reasonablejury service in a given case is left largely to the discretion of the trial court, which canquestion and observe the prospective juror during voir dire' " (People [*2]v Taylor, 76 AD3d 717, 718 [2010], quotingPeople v Davis, 221 AD2d 653, 654 [1995]). Viewing the prospective juror'svoir dire as a whole (see People v Blyden, 55 NY2d 73, 78 [1982]), herresponses demonstrated that she did not possess a state of mind that would haveprecluded her from rendering an impartial verdict based on the evidence adduced at trial(see CPL 270.20 [1] [b]).
However, as the People correctly concede, the defendant's conviction of assault inthe second degree, and the sentence imposed thereon, must be vacated, and that count ofthe indictment dismissed, because that count is a lesser-included offense of thedefendant's conviction of assault in the first degree (see People v Martir, 262AD2d 333, 334 [1999]; People v Seaman, 238 AD2d 449, 450 [1997]). Mastro,J.P., Rivera, Dickerson and Lott, JJ., concur.