People v. Montanez

151 A.D.2d 616, 543 N.Y.S.2d 925, 1989 N.Y. App. Div. LEXIS 7919

Opinion

Appeal by the defendant from a judgment of the County Court, Dutchess County (King, J.), rendered November 19, 1984, convicting him of robbery in the first degree and robbery in the second 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 identification testimony.

Ordered that the judgment is affirmed.

We find no merit to the defendant’s contention that the photo array shown to the complainant was unduly suggestive thereby warranting preclusion of the complainant’s in-court identification testimony. The record reveals that all of the photos fit the general description of the assailants given by the complainant. The fact that defendant and a codefendant appeared in the same array consisting of eight photographs did not create a substantial likelihood of irreparable misidentification (see, People v Tedesco, 143 AD2d 155). Upon the complainant’s selection of the defendant’s photograph from the array, the police had probable cause to arrest him.

We further find that the statements made by the prosecutor which the defendant contends constituted prosecutorial misconduct were either proper responses to the defense summation (see, People v Corley, 140 AD2d 536; People v Street, 124 AD2d 841; People v Freeman, 123 AD2d 784) or ameliorated by the court’s prompt curative instructions (see, People v Arce, 42 NY2d 179, 190-191; People v Corley, supra).

We have considered the defendant’s remaining contentions and find them to be either unpreserved for appellate review (CPL 470.05 [2]) or without merit. Thompson, J. P., Lawrence, Rubin and Balletta, JJ., concur.