| People v Brown |
| 2015 NY Slip Op 01374 [125 AD3d 1550] |
| February 13, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vTaye M. Brown, Appellant. |
Easton Thompson Kasperek Shiffrin LLP, Rochester (Donald M. Thompson ofcounsel), for defendant-appellant.
Sandra Doorley, District Attorney, Rochester (Robert J. Shoemaker of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Alex R. Renzi, J.), renderedMarch 11, 2009. The judgment convicted defendant, upon a jury verdict, of assault in thefirst degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of assault in the first degree (Penal Law § 120.10 [1]). We rejectdefendant's contention that County Court erred in denying his motion seeking to suppressthe identification testimony of two witnesses on the ground that the photo array used inthe pretrial identification procedures was unduly suggestive. We note that one witnessdid not make a positive identification of defendant from any photo array at any time.Instead, that witness identified defendant in a lineup procedure. The other witness madea positive identification of defendant from a photo array and again in a lineup procedureconducted 53 days later. Contrary to defendant's contention, the fact that he wasphotographed from a closer range did not impermissibly draw attention to his photographin the array (see People v Brown, 169 AD2d 934, 935 [1991], lv denied77 NY2d 958 [1991]; seealso People v Smiley, 49 AD3d 1299, 1300 [2008], lv denied 10 NY3d870 [2008]). In addition, the court properly declined to suppress the lineup identificationon the ground that it was influenced by the suggestiveness of the photo array procedure.We conclude that the passage of time between the photographic array and the lineupprocedure was sufficient to dissipate any taint of suggestiveness (see People v Thompson, 17AD3d 138, 139 [2005], lv denied 5 NY3d 795 [2005]; People vAllah, 158 AD2d 605, 606 [1990], lv denied 76 NY2d 730 [1990]).
We reject defendant's further contention that the procedure followed by the courtwith respect to a jury note during jury deliberations violated the procedure set forth bythe Court of Appeals in People v O'Rama (78 NY2d 270, 277-278 [1991]), andwe conclude that the court fulfilled its "core responsibilities under CPL 310.30" (People v Tabb, 13 NY3d852, 853 [2009]). Indeed, the record clearly indicates that defense counsel assistedin formulating responses to the specific factual inquiries presented in the jury note (see People v Williams, 50AD3d 472, 473 [2008], lv denied 10 NY3d 940 [2008]). Further, defendantfailed to preserve for our review his contention with respect to that part of the jury noterequesting readbacks of certain trial testimony (see People v Alcide, 95 AD3d 897, 898 [2012], affd21 NY3d 687 [2013]), and we decline to reach that contention as a matter ofdiscretion in the interest of justice (see CPL 470.15 [6] [a]). Lastly, defendantwaived his right to be notified of the jury's request for the trial exhibits, to be present forthe reading of any such request in a jury note, and to have any input into the manner ofdelivery of the exhibits to the jury (see People v King, 56 AD3d 1193, 1194 [2008], lvdenied 11 NY3d 926 [2009]). Present—Scudder, P.J., Centra, Carni andSconiers, JJ.