People v. Fomby

Appellate Division of the Supreme Court of New York

People v. Fomby

298 A.D.2d 893, 747 N.Y.S.2d 838, 2002 N.Y. App. Div. LEXIS 8917

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 1, 2002

StatusPublished

Cited by1 cases

This text of 298 A.D.2d 893 (People v. Fomby) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Fomby, 298 A.D.2d 893, 747 N.Y.S.2d 838, 2002 N.Y. App. Div. LEXIS 8917 (N.Y. Ct. App. 2002).

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Opinion

—Appeal from a judgment of Supreme Court, Erie County (Tills, J.), entered December 3, 1999, convicting defendant after a jury trial of robbery in the second degree (two counts).

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him following a jury trial of two counts of robbery in the second degree (Penal Law § 160.10 [1], [2] [b]). We reject defendant’s contention that the pretrial identification procedure was unduly suggestive. The photo array, which was shown to each witness separately, contained the photographs of six black males who were approximately the same age, had similar skin tone, and each of whom had close-cropped hair and a moustache. Contrary to defendant’s contention, “the viewer’s attention is not drawn to defendant’s photo in such a way as to indicate that the police were urging a particular selection” (People v Rogers, 245 AD2d 1041, 1041; see generally People v Chipp, 75 NY2d 327, 335, cert denied 498 US 833). We further conclude that the conviction is supported by legally sufficient evidence and that the verdict is not against the weight of the evidence (see People v Bleakley, 69 NY2d 490, 495). The sentence is neither unduly harsh nor severe. Present — Wisner, J.P., Hurlbutt, Scudder and Kehoe, JJ.

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—Appeal from a judgment of Supreme Court, Erie County (Tills, J.), entered December 3, 1999, convicting defendant after a jury trial of robbery in the second degree (two counts).

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him following a jury trial of two counts of robbery in the second degree (Penal Law § 160.10 [1], [2] [b]). We reject defendant’s contention that the pretrial identification procedure was unduly suggestive. The photo array, which was shown to each witness separately, contained the photographs of six black males who were approximately the same age, had similar skin tone, and each of whom had close-cropped hair and a moustache. Contrary to defendant’s contention, “the viewer’s attention is not drawn to defendant’s photo in such a way as to indicate that the police were urging a particular selection” (People v Rogers, 245 AD2d 1041, 1041; see generally People v Chipp, 75 NY2d 327, 335, cert denied 498 US 833). We further conclude that the conviction is supported by legally sufficient evidence and that the verdict is not against the weight of the evidence (see People v Bleakley, 69 NY2d 490, 495). The sentence is neither unduly harsh nor severe. Present — Wisner, J.P., Hurlbutt, Scudder and Kehoe, JJ.

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Bluebook (online)

298 A.D.2d 893, 747 N.Y.S.2d 838, 2002 N.Y. App. Div. LEXIS 8917, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-fomby-nyappdiv-2002.

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