Opinion
June 6, 2000.
Judgment, Supreme Court, Bronx County (Martin Marcus, J.), rendered May 8, 1997, convicting defendant, after a jury trial, of attempted murder in the first degree (two counts) and robbery in the first degree, and sentencing him, as a persistent violent felony offender, to two concurrent terms of 20 years to life consecutive to a term of 15 years to life, respectively, unanimously affirmed.
Lynetta M. St. Clair, for respondent.
Nancy E. Little, for defendant-appellant.
Before: Williams, J.P., Ellerin, Wallach, Rubin, JJ.
The verdict was based on legally sufficient evidence and was not against the weight of the evidence. With respect to the attempted murder conviction, defendant's homicidal intent was clearly established by the "combat stance" that defendant took while carefully aiming at the officers and firing at least two shots, and the fact that he hit the van behind which they had taken cover. With respect to the robbery, there is no basis upon which to disturb the jury's determinations concerning identification and the evaluation of circumstantial evidence.
Defendant's motion to suppress identification testimony was properly denied. The record supports the court's finding that defendant did not meet his burden of establishing that the lineup was unduly suggestive (see, People v. Chipp, 75 N.Y.2d 327, 335 cert denied 498 U.S. 833). The fillers were reasonably similar to defendant, and defendant's unusual hairstyle, the product of his hasty efforts to alter his appearance, was not a suggestive factor because the fillers had a variety of hairstyles and because defendant's hairstyle was substantially different from the one he was described as wearing at the time of the crime (see, People v. Gonzalez, 173 A.D.2d 48, 56; People v. Ortiz, 165 A.D.2d 766, 767, lv denied 77 N.Y.2d 998).
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.