People v. Ashby

262 A.D.2d 497, 692 N.Y.S.2d 109, 1999 N.Y. App. Div. LEXIS 6589

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 14, 1999
• Status: Published

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (McKay, J.), rendered April 17, 1996, convicting him of robbery in the first 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 certain identification evidence.

Ordered that the judgment is affirmed.

The hearing court properly denied suppression of testimony relating to the lineup identification procedure. While it is true that one of the fillers had a skin tone lighter than that of the defendant, the lineup was otherwise comprised of individuals with similar characteristics. “[T]here is no requirement that a defendant be surrounded by individuals nearly identical in appearance during identification procedures” (People v Leka, 209 AD2d 723, 724). Moreover, the identification procedure was conducted in a nonsuggestive manner.

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. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15 [5]).

The sentence imposed was not excessive (see, People v Suitte, 90 AD2d 80).

The defendant’s remaining contentions are either unpreserved for appellate review or without merit (see, People v Ladd, 89 NY2d 893; People v Sutton, 209 AD2d 456). Thompson, J. P., Sullivan, Altman and Florio, JJ., concur.