| People v Dunbar |
| 2015 NY Slip Op 09115 [134 AD3d 851] |
| December 9, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Douglas Dunbar III, Appellant. |
Bruce A. Petito, Poughkeepsie, N.Y., for appellant.
David M. Hoovler, District Attorney, Middletown, N.Y. (Andrew R. Kass ofcounsel; Amanda Arroyo on the brief), for respondent.
Appeals by the defendant from two judgments of the County Court, Orange County(Berry, J.), both rendered December 7, 2011, convicting him of robbery in the firstdegree under indictment No. 11-00046 and robbery in the first degree under indictmentNo. 11-00233, upon his pleas of guilty, and imposing sentences. The appeals bring up forreview the denial, after a hearing, of that branch of the defendant's omnibus motionwhich was to suppress identification evidence.
Ordered that the judgments are affirmed.
Contrary to the People's contention, the defendant's purported waiver of his right toappeal was invalid (see People vFinnegan, 112 AD3d 847 [2013]; People v Gil, 109 AD3d 484 [2013]).
The County Court properly denied that branch of the defendant's omnibus motionwhich was to suppress identification evidence. "A photographic array is suggestivewhere some characteristic of an individual's picture draws the viewer's attention 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 arrays were sufficiently similar in appearance tothe defendant, and there was little likelihood that the defendant would be singled out foridentification based on particular characteristics (see People v Curtis, 71 AD3d at1044). Furthermore, contrary to the defendant's contention, the fact that he was placed inposition number four in the photo arrays and, approximately two months later, wasplaced in position number four in a corporeal lineup, was not so suggestive as to create asubstantial likelihood that he would be misidentified (see People v Weay, 2 AD3d 468 [2003]; People vMunoz, 223 AD2d 370 [1996]). The defendant's contention that the corporeal lineupwas conducted with individuals who did not look sufficiently similar to him isunpreserved for appellate review (see CPL 470.05 [2]; People v Martin, 116 AD3d981, 982 [2014]) and, in any event, without merit.
The defendant's contention, raised in point II of his brief, is unpreserved for appellatereview and, in any event, without merit. The defendant's remaining contention, raised inpoint III of his brief, is forfeited by his pleas of guilty. Dillon, J.P., Hall, Cohen andBarros, JJ., concur.