Opinion
No. KA 08-00449.
October 3, 2008.
Appeal from a judgment of the Supreme Court, Monroe County (David D. Egan, J.), rendered January 27, 2004. The judgment convicted defendant, upon a jury verdict, of rape in the second degree.
LAW OFFICES OF MAURICE J. VERRILLO, P.C., ROCHESTER (MAURICE VERRILLO OF COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (LESLIE E. SWIFT OF COUNSEL), FOR RESPONDENT.
Before: Hurlbutt, J.P., Centra, Peradotto, Green and Gorski, JJ.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, of rape in the second degree (Penal Law § 130.30). By his general motion for a trial order of dismissal, defendant failed to preserve for our review his contention that the evidence is legally insufficient to support the conviction ( see People v Gray, 86 NY2d 10, 19). In any event, that contention and defendant's further contention that the verdict is against the weight of the evidence are both without merit ( see generally People v Bleakley, 69 NY2d 490, 495). The victim's testimony was not so inconsistent as to render it incredible as a matter of law ( see People v Calabria, 3 NY3d 80, 82; People v Black, 38 AD3d 1283, 1285, lv denied 8 NY3d 982; People v Duffy, 299 AD2d 914 [2002], lv denied 99 NY2d 628), and we see no reason to disturb the jury's resolution of credibility issues ( see generally Bleakley, 69 NY2d at 495; People v Harris, 15 AD3d 966, 967, lv denied 4 NY3d 831). Finally, we reject defendant's contention that the photo array was unduly suggestive and that Supreme Court therefore erred following the suppression hearing in refusing to suppress the victim's identification testimony ( see generally People v Chipp, 75 NY2d 327, 335, cert denied 498 US 833). The photos in the array are "sufficiently similar in appearance so that the viewer's attention is not drawn to any one photograph in such a way as to indicate that the police were urging a particular selection" ( People v Quinones, 5 AD3d 1093, 1093, lv denied 3 NY3d 646; see People v Diggs, 19 AD3d 1098, lv denied 5 NY3d 787, rearg granted and order amended 21 AD3d 1438).