| People v Chavez |
| 2016 NY Slip Op 00509 [135 AD3d 952] |
| January 27, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Raneiro Chavez, Appellant. |
Seymour W. James, Jr., New York, NY (Ellen Dille of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, NY (Leonard Joblove and JillOziemblewski of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Chun, J.), rendered November 7, 2012, convicting him of murder in the first degree (twocounts), attempted murder in the second degree, and criminal possession of a weapon inthe second degree (two counts), upon a jury verdict, and imposing sentence. The appealbrings up for review the denial, after a hearing, of that branch of the defendant's omnibusmotion which was to suppress identification testimony.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the hearing court properly denied that branchof his omnibus motion which was to suppress lineup identification evidence (seePeople v Jackson, 98 NY2d 555, 558 [2002]; People v Chipp, 75 NY2d 327,335 [1990]). A review of the photograph that was taken at the lineup reveals that thelineup fillers possessed physical characteristics that were reasonably similar to those ofthe defendant, and that the police took reasonable steps to conceal any differencesbetween the appearances of the lineup fillers and the defendant (see People v Perkins, 124AD3d 915 [2015], lv granted 25 NY3d 1205 [2015]; People v Solis, 43 AD3d1190, 1191 [2007]; People v Pinckney, 220 AD2d 539 [1995]; People vStephens, 143 AD2d 692, 695 [1988]). A review of the photograph that was taken atthe lineup also reveals that, contrary to the defendant's contention, any differencesbetween the defendant's age and the ages of the lineup fillers were not discernable fromtheir appearances such that the defendant was singled out (see People v Mullings, 88AD3d 745 [2011]; People v Pinckney, 220 AD2d 539 [1995]; People vMattocks, 133 AD2d 89, 90 [1987]). Moreover, the defendant's contention that hewas singled out by virtue of the clothing that was worn by the lineup fillers is similarlywithout merit, as there was no evidence adduced at the Wade hearing (seeUnited States v Wade, 388 US 218 [1967]) which indicated that the witnesses reliedon clothing in identifying the defendant (see People v Cusimano, 48 AD3d 475 [2008]; People vTinnen, 238 AD2d 615, 616 [1997]; People v Moore, 193 AD2d 627[1993]).
Viewing the evidence in the light most favorable to the prosecution, we find that theevidence was sufficient to prove the defendant's guilt beyond a reasonable doubt (seePeople v Contes, 60 NY2d 620, 621 [1983]). Moreover, upon our independentreview pursuant to CPL 470.15 (5), we are satisfied that the verdict of guilt was notagainst the weight of the evidence (see People v [*2]Romero, 7NY3d 633 [2006]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]). Rivera, J.P., Hall, Roman and Sgroi, JJ., concur.