People v. Ivey

Appellate Division of the Supreme Court of New York

People v. Ivey

272 A.D.2d 883, 708 N.Y.S.2d 767, 2000 N.Y. App. Div. LEXIS 5233

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

DecidedMay 10, 2000

StatusPublished

This text of 272 A.D.2d 883 (People v. Ivey) 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. Ivey, 272 A.D.2d 883, 708 N.Y.S.2d 767, 2000 N.Y. App. Div. LEXIS 5233 (N.Y. Ct. App. 2000).

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Opinion

—Judgment unanimously affirmed. Memorandum: Supreme Court properly denied defendant’s motion to suppress a victim’s identification of defendant. The People met their initial burden of establishing the reasonableness of the police conduct, and defendant failed to meet his ultimate burden of establishing that the photo array was unduly suggestive (see, People v Chipp, 75 NY2d 327, 335, cert denied 498 US 833). Although only one other person depicted in the photo array had hair as long as defendant’s, the victim testified that defendant was wearing a hood at the time of the robbery, and there is no indication in the record that defendant’s hair was a factor in the victim’s identification of defendant. The fact that defendant was photographed at a closer range than the others depicted in the photo array does not render the array unduly suggestive (see, People v Brown, 169 AD2d 934, 935, lv denied 77 NY2d 958). In any event, the victim viewed defendant from a distance of approximately two feet for at least one minute, and thus there was a sufficient independent basis for the victim’s in-court identification of defendant (see, People v Saulters, 255 AD2d 896, lv denied 92 NY2d 1038).

We reject the contention of defendant that he was denied effective assistance of counsel (see, People v Flores, 84 NY2d 184, 189; People v Rivera, 71 NY2d 705, 708-709). Defendant had two different counsel, one during the pretrial stage and another during the trial. Defendant did not specify which attorney failed to provide effective representation, nor did he identify any conduct that deprived him of a fair trial. Contrary to defendant’s contention, the verdict is not against the weight of the evidence (see, People v Bleakley, 69 NY2d 490, 495). The sentence of 25 years to life, based upon defendant’s status as a persistent felony offender, is neither unduly harsh nor severe. (Appeal from Judgment of Supreme Court, Monroe County, Kehoe, J. — Robbery, 1st Degree.) Present — Pigott, Jr., P. J., Green, Wisner and Scudder, JJ.

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—Judgment unanimously affirmed. Memorandum: Supreme Court properly denied defendant’s motion to suppress a victim’s identification of defendant. The People met their initial burden of establishing the reasonableness of the police conduct, and defendant failed to meet his ultimate burden of establishing that the photo array was unduly suggestive (see, People v Chipp, 75 NY2d 327, 335, cert denied 498 US 833). Although only one other person depicted in the photo array had hair as long as defendant’s, the victim testified that defendant was wearing a hood at the time of the robbery, and there is no indication in the record that defendant’s hair was a factor in the victim’s identification of defendant. The fact that defendant was photographed at a closer range than the others depicted in the photo array does not render the array unduly suggestive (see, People v Brown, 169 AD2d 934, 935, lv denied 77 NY2d 958). In any event, the victim viewed defendant from a distance of approximately two feet for at least one minute, and thus there was a sufficient independent basis for the victim’s in-court identification of defendant (see, People v Saulters, 255 AD2d 896, lv denied 92 NY2d 1038).

We reject the contention of defendant that he was denied effective assistance of counsel (see, People v Flores, 84 NY2d 184, 189; People v Rivera, 71 NY2d 705, 708-709). Defendant had two different counsel, one during the pretrial stage and another during the trial. Defendant did not specify which attorney failed to provide effective representation, nor did he identify any conduct that deprived him of a fair trial. Contrary to defendant’s contention, the verdict is not against the weight of the evidence (see, People v Bleakley, 69 NY2d 490, 495). The sentence of 25 years to life, based upon defendant’s status as a persistent felony offender, is neither unduly harsh nor severe. (Appeal from Judgment of Supreme Court, Monroe County, Kehoe, J. — Robbery, 1st Degree.) Present — Pigott, Jr., P. J., Green, Wisner and Scudder, JJ.

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Bluebook (online)

272 A.D.2d 883, 708 N.Y.S.2d 767, 2000 N.Y. App. Div. LEXIS 5233, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-ivey-nyappdiv-2000.

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