People v. Neptune

193 A.D.2d 703, 598 N.Y.S.2d 47

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 10, 1993
• Status: Published

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Rienzi, J.), rendered November 27, 1990, convicting him of robbery in the second degree, criminal possession of a weapon in the second degree, and assault in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant’s contention that he was deprived of a fair trial and due process when he was asked to smile during the lineup procedure is unpreserved for appellate review (see, CPL 470.05 [2]), and, in any event, without merit. All of the participants in the lineup were asked to smile at the complainant’s request, after he remembered that the perpetrator had a chipped tooth. He testified that he had recognized the defendant, but that he wanted to make sure, so he asked all of the participants to smile. There is no indication that any of the law enforcement officers acted improperly or that the identification procedure was improperly suggestive (see, Neil v Biggers, 409 US 188; People v Adams, 53 NY2d 241, 249; People v McClarin, 157 AD2d 747; People v Wong, 133 AD2d 184).

Viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15 [5]).

The defendant’s sentence was not excessive (see, People v Delgado, 80 NY2d 780; People v Suitte, 90 AD2d 80).

The defendant’s remaining contentions are either unpreserved for appellate review or without merit. Sullivan, J. P., Lawrence, Copertino and Santucci, JJ., concur.