People v. Davis

148 A.D.2d 952, 539 N.Y.S.2d 189, 1989 N.Y. App. Div. LEXIS 2681

Opinion

Judgment unanimously affirmed. Memorandum: After reviewing the record of the Wade hearing and examining the photo array in question, we conclude that there is no merit to defendant’s claim that the photographic array was unduly suggestive. Although only 3 of the 6 photographs in the array were of men wearing glasses, the record is clear that the victim was unsure whether the man who attempted to rob him wore glasses, although it was a possibility. The photo array depicts six males all about the same age with similar facial features and was not so suggestive that the witnesses’ attention was drawn to only one subject (see, People v Dubois, 140 AD2d 619, 622, Iv denied 72 NY2d 911). Moreover, there was no suggestion to the witnesses that defendant’s photo was in the array (see, People v Hernandez, 70 NY2d 833, 835; People v Rodriguez, 64 NY2d 738, 740-741). (Appeal from judgment of Monroe County Court, Egan, J. — assault, third degree.) Present — Dillon, P. J., Callahan, Boomer, Green and Davis, JJ.