SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT
December 2, 2008
THE PEOPLE, ETC., RESPONDENT,
FRANTZY JEAN-BAPTISTE, APPELLANT.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Del Giudice, J.), rendered September 21, 2006, convicting him of robbery in the first degree and robbery in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress identification testimony.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
ROBERT A. SPOLZINO, J.P., JOSEPH COVELLO, DANIEL D. ANGIOLILLO & CHERYL E. CHAMBERS, JJ.
(Ind. No. 8870/05)
DECISION & ORDER
ORDERED that the judgment is affirmed.
The defendant's challenge to the legal sufficiency of the evidence supporting his convictions of robbery in the first degree and robbery in the second degree is unpreserved for appellate review (see CPL 470.05; People v Finger, 95 NY2d 894, 895; People v Gray, 86 NY2d 10, 19-21). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15; People v Danielson, 9 NY3d 342), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410, cert denied 542 US 946; People v Bleakley, 69 NY2d 490, 495). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633).
The hearing court properly declined to suppress lineup identification evidence (see People v Chipp, 75 NY2d 327, 336, cert denied 498 US 833). "While the fillers used in a lineup must be sufficiently similar to the defendant so that no characteristic or visual clue would orient the viewer toward the defendant as a perpetrator of the crimes charged (see People v Lundquist, 151 AD2d 505, 506), there is no requirement that a defendant in a lineup be accompanied by individuals nearly identical in appearance" (People v Cintron, 226 AD2d 390, 390-391). The fact that the defendant was the only one in the lineup wearing a blue striped shirt was not so unduly suggestive of his identity as to create a substantial likelihood of irreparable misidentification because there is no evidence that his clothing figured prominently in the witness' description of the perpetrator (see People v Jordan, 44 AD3d 875, 876; People v Torres, 309 AD2d 823, 824). Moreover, the defendant's physical characteristics were sufficiently similar to the other participants in the lineup as to negate any likelihood that the defendant would be singled out for identification (see People v Jackson, 98 NY2d 555, 559; People v Arroyo, 38 AD3d 792, 793; People v Davis, 27 AD3d 761; People v Peterkin, 27 AD3d 666, 667; People v Gelzer, 224 AD2d 443).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80, 85-86).
SPOLZINO, J.P., COVELLO, ANGIOLILLO and CHAMBERS, JJ., concur.
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