| People v Perez |
| 2015 NY Slip Op 04039 [128 AD3d 465] |
| May 12, 2015 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Victor Perez, Appellant. |
Luis O. Diaz, New York, for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Vincent Rivellese of counsel), forrespondent.
Judgment, Supreme Court, New York County (Michael R. Sonberg, J., atsuppression hearing; Thomas Farber, J., at jury trial and sentencing), rendered August 6,2013, as amended August 28, 2013, convicting defendant of robbery in the first degreeand two counts of robbery in the second degree, and sentencing him to concurrent termsof eight years, unanimously affirmed.
The court properly denied defendant's motion to suppress lineup identifications bytwo witnesses. Although the People conceded that one witness had been shown anunduly suggestive photo array, the lineup occurred 20 days later, and the record supportsthe court's finding of attenuation (see e.g. People v Allah, 158 AD2d 605[2d Dept 1990], lv denied 76 NY2d 730 [1990]). The lineup was not undulysuggestive. Defendant and the fillers were all reasonably similar in appearance, and therewas no substantial likelihood that defendant would be singled out (see People vChipp, 75 NY2d 327, 336 [1990], cert denied 498 US 833 [1990]).
The verdict was based on legally sufficient evidence and was not against the weightof the evidence (see People vDanielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing thejury's determinations concerning credibility and identification. Defendant was identifiedby two witnesses, one of whom was familiar with defendant from prior occasions. Inaddition, defendant was connected to the crime through a surveillance videotape andcircumstantial evidence.
The court properly admitted photographic evidence tending to show defendant'sconnection with an alleged accomplice. The People established a sufficient foundationfor introduction of the photographs. Defendant's remaining arguments concerning thephotos are unpreserved and we decline to review them in the interest of justice. As analternative holding, we reject them on the merits. To the extent that one of the photoscould be viewed as prejudicial, the court provided a sufficient remedy, upon defendant'sbelated objection, by removing it from evidence and delivering a curative instruction.Concur—Gonzalez, P.J., Mazzarelli, DeGrasse and Kapnick, JJ.