| People v Evans |
| 2016 NY Slip Op 02214 [137 AD3d 1683] |
| March 25, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vDerick Evans, Also Known as Derrick Evans, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Piotr Banasiak of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel),for respondent.
Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti,A.J.), rendered February 21, 2013. The judgment convicted defendant, upon a juryverdict, of burglary in the second degree, criminal mischief in the fourth degree and petitlarceny.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of burglary in the second degree (Penal Law § 140.25 [2]), criminalmischief in the fourth degree (§ 145.00 [1]), and petit larceny(§ 155.25). We reject defendant's contention that Supreme Court erred inrefusing to suppress identification evidence on the ground that the photo array wasunduly suggestive. The photographs portray men with similar physical features. "The factthat defendant's photograph has a slightly lighter background than the others does notsupport the conclusion that the identification procedure was unduly suggestive"(People v Burns, 186 AD2d 1015, 1016 [1992], lv denied 81 NY2d 837[1993]; see People v Gray, 186 AD2d 1058, 1058 [1992], lv denied 81NY2d 840 [1993]). For the first time on appeal, defendant also contends that the photoarray was unduly suggestive because the number under his photograph was not from thesame sequence of numbers under the other photographs. Defendant did not raise thatcontention in the hearing court and, therefore, it is not preserved for our review (see People v Bakerx, 114AD3d 1244, 1247-1248 [2014], lv denied 22 NY3d 1196 [2014]). Wedecline to exercise our power to review that contention as a matter of discretion in theinterest of justice (see CPL 470.15 [6] [a]).
Defendant contends that trial counsel failed to conduct an adequate pretrialinvestigation because he did not obtain a video surveillance recording of the crime scene.Defendant's contention involves matters outside the record and, as such, is properly thesubject of a CPL article 440 motion (see generally People v Monaghan, 101 AD3d 1686, 1686[2012], lv denied 23 NY3d 965 [2014]). We recognize that defendant's CPL330.30 motion to set aside the verdict, which is included in the record on appeal, raisedthis issue. We conclude, however, that the record is not sufficiently developed to permitresolution of defendant's contention (see People v Bahr, 96 AD3d 1165, 1166 [2012], lvdenied 19 NY3d 1024 [2012]; People v Green, 92 AD3d 894, 896 [2012], lv denied19 NY3d 961 [2012]). Finally, the sentence is not unduly harsh or severe.Present—Carni, J.P., Lindley, DeJoseph, Nemoyer and Troutman, JJ.