People v. Hawkins

126 A.D.2d 747, 511 N.Y.S.2d 331, 1987 N.Y. App. Div. LEXIS 41898

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Queens County (O’Dwyer, J.), rendered January 15, 1981, convicting him of robbery in the first degree (three counts), 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.

Ordered that the judgment is affirmed.

Contrary to the defendant’s claim, the hearing court did not err in denying that branch of his omnibus motion which was to suppress the identification testimony. The defendant failed to establish his ultimate burden of proving that the photographic array was unduly suggestive (see, People v Berrios, 28 NY2d 361, 367; People v Jackson, 108 AD2d 757). The mere fact that the defendant was the only one depicted in the photographic array with an earring did not indicate that his picture "stood out from the rest” (People v Coleman, 114 AD2d 906).

Finally, we reject the defendant’s claim that the verdict was against the weight of the evidence. To the contrary, the testimony of the three eyewitnesses to the crime was clearly sufficient to support the verdict and, in fact, overwhelmingly established the defendant’s guilt beyond a reasonable doubt. Brown, J. P., Rubin, Kooper and Sullivan, JJ., concur.