| People v Holley |
| 2014 NY Slip Op 02334 [116 AD3d 442] |
| April 3, 2014 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Todd Holley, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Joshua L. Haber of counsel), forrespondent.
Judgment, Supreme Court, New York County (Ruth Pickholz, J., at suppressionhearing; Juan M. Merchan, J., at jury trial and sentencing), rendered March 1, 2011,convicting defendant of attempted robbery in the third degree and two counts of assaultin the third degree, and sentencing him, as a second felony offender, to an aggregate termof two to four years, unanimously affirmed.
The court properly denied defendant's motion to suppress identification testimony.Viewing, as a whole, the entire procedure whereby a witness identified defendant from aseries of photo arrays generated by the police photo manager computer system, weconclude that the procedure was not unduly suggestive. The detective's testimony abouthow the computerized procedure operates sufficiently established its fairness. The factthat the police failed to preserve the arrays viewed by the witness does not warrant adifferent conclusion (see People v Patterson, 306 AD2d 14 [1st Dept 2003],lv denied 1 NY3d 541 [2003]; People v Campos, 197 AD2d 366 [1stDept 1993], lv denied 82 NY2d 892 [1993]). We also conclude that the detectiveentered sufficient information about the description of the perpetrator to ensure that thecomputer generated a fair selection of photos.
Based on our review of the photograph of the ensuing lineup, we conclude that therecord also supports the hearing court's finding that the lineup was not unduly suggestive(see People v Chipp, 75 NY2d 327, 336 [1990], cert denied 498 US 833[1990]). Any differences between defendant and the other participants, including an agedisparity not fully reflected in the participants' actual appearances, and a weight disparitythat was minimized by having the participants seated, was not so noticeable as to singledefendant out (see e.g. People vAmuso, 39 AD3d 425 [1st Dept 2007], lv denied 9 NY3d 862 [2007]).
We have considered defendant's arguments concerning a detective's briefbackground testimony about his "investigation," as well as his arguments about eventsthat occurred during [*2]the defense and prosecutionsummations, and we find no basis for reversal. Concur—Tom, J.P., Acosta, Saxe,DeGrasse and Freedman, JJ.