Opinion
KA 00-00067
October 1, 2002.
Appeal from a judgment of Supreme Court, Erie County (Tills, J.), entered December 3, 1999, convicting defendant after a jury trial of robbery in the second degree (two counts).
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KAREN C. RUSSO-McLAUGHLIN OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (DONNA A. MILLING OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: WISNER, J.P., HURLBUTT, SCUDDER, AND KEHOE, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting him following a jury trial of two counts of robbery in the second degree (Penal Law § 160.10, [2] [b]). We reject defendant's contention that the pretrial identification procedure was unduly suggestive. The photo array, which was shown to each witness separately, contained the photographs of six black males who were approximately the same age, had similar skin tone, and each of whom had close-cropped hair and a moustache. Contrary to defendant's contention, "the viewer's attention is not drawn to defendant's photo in such a way as to indicate that the police were urging a particular selection" ( People v. Rogers, 245 A.D.2d 1041, 1041; see generally People v. Chipp, 75 N.Y.2d 327, 335, cert denied 498 U.S. 833). We further conclude that the conviction is supported by legally sufficient evidence and that the verdict is not against the weight of the evidence ( see People v. Bleakley, 69 N.Y.2d 490, 495). The sentence is neither unduly harsh nor severe.