People v. Wyche

136 A.D.3d 599, 25 N.Y.S.3d 602

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 25, 2016
• Docket: 328 3006/08
• Status: Published

Opinion

Judgment, Supreme Court, Bronx County (Denis J. Boyle, J., at suppression hearing; Edgar G. Walker, J., at plea and sentencing), rendered February 16, 2012, convicting defendant of two counts of robbery in the second degree, and sentencing him to concurrent terms of 3V2 years, unanimously affirmed.

Regardless of whether defendant’s waiver of appeal was enforceable, we find that the court properly denied defendant’s motion to suppress identification testimony. The People overcame the presumption of suggestiveness resulting from the nonproduction of evidence of the computerized photo arrays shown to a witness (see People v Holley, 26 NY3d 514 [2015]). The detective’s testimony about the photo manager system and the procedures he employed was substantially similar to the testimony given in Holley. Defendant has not established that the clothing he wore in his photograph would cause him to be singled out, especially since the witness’s description of the robber did not mention clothing.

Concur — Friedman, J.P., Sweeny, Saxe and Gische, JJ.