| People v Redding |
| 2015 NY Slip Op 07296 [132 AD3d 700] |
| October 7, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Ralph Redding, Appellant. |
Carl D. Birman, Mamaroneck, N.Y., for appellant.
Janet DiFiore, District Attorney, White Plains, N.Y. (John Carmody, Laurie G.Sapakoff and Steven A. Bender of counsel), for respondent.
Appeals by the defendant (1) from a judgment of the County Court, WestchesterCounty (Hubert, J.), rendered February 24, 2012, convicting him of burglary in the firstdegree (two counts), robbery in the first degree, robbery in the second degree, assault inthe second degree (two counts), and assault in the third degree, upon a jury verdict, andimposing sentence, and (2), by permission, from an order of the same court (Zambelli,J.), dated March 26, 2014, which denied his motion pursuant to CPL 440.10 to vacate thejudgment rendered February 24, 2012. The appeal from the judgment brings up forreview the denial, after a hearing, of that branch of the defendant's omnibus motionwhich was to suppress identification testimony.
Ordered that the judgment and the order are affirmed.
Contrary to the defendant's contention, the County Court properly denied thosebranches of his omnibus motion which were to suppress the identification testimony offour witnesses who identified him after viewing photo packets. "A photographic array issuggestive where some characteristic of an individual's picture draws the viewer'sattention to it, indicating that the police have made a particular selection" (People v Curtis, 71 AD3d1044, 1045 [2010]; see People v Wright, 297 AD2d 391, 391 [2002]). Here,the various persons depicted in the photo packets used in the pretrial identificationprocedures were sufficiently similar in appearance to the defendant that there was littlelikelihood the defendant would be singled out for identification based on particularcharacteristics (see People v Curtis, 71 AD3d at 1045). Although the backgroundof the defendant's photograph was lighter than the backgrounds of the other photographs,and the defendant's photograph was of poorer resolution than the others, those facts werenot sufficient to render the photo packets unduly suggestive (see People v Boria,279 AD2d 585, 586 [2001]; People v Sawyer, 253 AD2d 501, 501 [1998];People v Martin, 245 AD2d 308 [1997]; People v Tedesco, 143 AD2d155, 156 [1988]). To the extent the defendant argues that suppression was improperlydenied because the County Court did not apply the best practices standards of the NewYork State District Attorneys Association, his contention is unpreserved for appellatereview (see CPL 470.05 [2]; People v Lago, 60 AD3d 784, 784 [2009]).
[*2] The County Court providently exercised its discretionin denying, without a hearing, the defendant's motion to admit expert testimony at trial onthe issue of the reliability of eyewitness identifications, since there was sufficientcorroborating evidence connecting the defendant to the crimes to obviate the need forexpert testimony (see People vGranger, 122 AD3d 940, 941 [2014]; People v Rhodes, 115 AD3d 681, 682 [2014]; People v Rodriguez, 98 AD3d530, 532 [2012]; People vFernandez, 78 AD3d 726, 726-727 [2010]).
Contrary to the defendant's contention, he has not demonstrated that his trial counselwas ineffective under either federal or state constitutional standards (see Strickland vWashington, 466 US 668, 687 [1984]; People v Caban, 5 NY3d 143 [2005]; People vBaldi, 54 NY2d 137 [1981]; People v Bonds, 128 AD3d 1083 [2015]).
Lastly, the County Court properly denied the defendant's motion to vacate thejudgment of conviction pursuant to CPL 440.10. The court properly determined thatthere was no merit to the defendant's contention that the People committed certainBrady violations (see Brady v Maryland, 373 US 83 [1963]), since theevidence at issue was either not Brady material (see People v McClain, 53AD3d 556 [2008]; People vSingh, 5 AD3d 403, 403-404 [2004]) or not exculpatory. The defendant'sremaining contentions in connection with the motion either are not properly before thisCourt (see CPL 440.10 [2] [b]; People v Johnson, 205 AD2d 707, 708[1994]), are without merit, or have been rendered academic in light of our determination.Mastro, J.P., Balkin, Sgroi and Maltese, JJ., concur.