Opinion
1998-01899
Argued November 15, 2001
December 3, 2001.
Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Rooney, J.), rendered January 22, 1998, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress identification testimony.
Randall D. Unger, Kew Gardens, N.Y., for appellant.
William L. Murphy, District Attorney, Staten Island, N Y (Karen F. McGee and Jonathan J. Silbermann of counsel), for respondent.
Before: HOWARD MILLER, J.P., SANDRA L. TOWNES, STEPHEN G. CRANE, BARRY A. COZIER, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
The hearing court properly denied that branch of the defendant's omnibus motion which was to suppress identification testimony. "A photographic array is suggestive where some characteristic of [an individual's] picture draws the viewer's attention to it, indicating that the police have made a particular selection" (People v. Robert, 184 A.D.2d 597, 598). Contrary to the defendant's contention, there is no indication that his photograph differed significantly from the photographs of the fillers (see, People v. Butts, 279 A.D.2d 587).
Viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15).
The defendant's remaining contentions are either unpreserved for appellate review, not properly before this court, or without merit.
H. MILLER, J.P., TOWNES, CRANE and COZIER, JJ., concur.