Opinion
2016–08262 Ind. No. 2080/15
09-18-2019
The PEOPLE, etc., Respondent, v. Brent BREVARD, Appellant.
Paul Skip Laisure, New York, N.Y. (Caitlin Halpern and William Kastin of counsel), for appellant, and appellant pro se. John M. Ryan, Acting District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Mariana Zelig, and Nancy Fitzpatrick of counsel), for respondent.
Paul Skip Laisure, New York, N.Y. (Caitlin Halpern and William Kastin of counsel), for appellant, and appellant pro se.
John M. Ryan, Acting District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Mariana Zelig, and Nancy Fitzpatrick of counsel), for respondent.
WILLIAM F. MASTRO, J.P., REINALDO E. RIVERA, RUTH C. BALKIN, JOSEPH J. MALTESE, JJ.
DECISION & ORDER ORDERED that the judgment is affirmed.
Contrary to the defendant's contention in his pro se supplemental brief, the Supreme Court did not err in declining to suppress identification evidence on the basis that the photo arrays and lineup procedures which resulted in the complainants' identification of the defendant as the perpetrator were unduly suggestive. There is no requirement that the other participants in a lineup or photo array be identical in appearance to the defendant (see People v. Staton , 138 A.D.3d 1149, 1149–1150, affd 28 N.Y.3d 1160, 49 N.Y.S.3d 351, 71 N.E.3d 939 ; People v. Davis , 27 A.D.3d 761, 815 N.Y.S.2d 612 ). Here, the participants in the photo array were sufficiently similar in appearance to the defendant such that there was little likelihood that he would be singled out for identification based on particular characteristics (see People v. Staton , 138 A.D.3d at 1150, 31 N.Y.S.3d 136 ). Regarding the lineup, since the participants resembled the defendant in weight, attire, hair color, and skin tone, the variations in age did not render the lineup impermissibly suggestive or conducive to mistaken identification (see People v. Davis , 27 A.D.3d 761, 815 N.Y.S.2d 612 ). Further, the defendant has not established that he was deprived of the right to counsel at the lineups (see People v. Hawkins , 55 N.Y.2d 474, 450 N.Y.S.2d 159, 435 N.E.2d 376 ; People v. Reyes , 60 A.D.3d 873, 874–875, 875 N.Y.S.2d 229 ).
The defendant was not deprived of the effective assistance of counsel during the hearing and trial (see People v. Wragg , 26 N.Y.3d 403, 409, 23 N.Y.S.3d 600, 44 N.E.3d 898 ; People v. Benevento , 91 N.Y.2d 708, 674 N.Y.S.2d 629, 697 N.E.2d 584 ). Defense counsel was not ineffective for failing to request that the trial court instruct the jury with respect to robbery in the third degree as a lesser-included offense of robbery in the first degree, as there was no reasonable view of the evidence under which the jury could have found that the defendant committed the lesser offense but not the greater (see CPL 300.50[1] ; People v. Mitchell , 59 A.D.3d 739, 740, 874 N.Y.S.2d 226 ). Additionally, the defendant received meaningful representation despite counsel's failure to object to the admission of the defendant's inmate call log into evidence or to request a limiting instruction. Any error in that respect was not "sufficiently egregious and prejudicial as to compromise [the] defendant's right to a fair trial" ( People v. Caban , 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 ; see People v. Tendilla–Fuentes , 157 A.D.3d 721, 723, 69 N.Y.S.3d 73 ). Furthermore, contrary to the defendant's contention in his pro se supplemental brief, defense counsel provided meaningful representation in connection with the suppression hearing. The defendant's remaining contentions, raised in his pro se supplemental brief, are without merit.
MASTRO, J.P., RIVERA, BALKIN and MALTESE, JJ., concur.