Opinion
February 16, 2000
Appeal from Judgment of Oneida County Court, Donalty, J. — Assault, 3rd Degree.
PRESENT: WISNER, J. P., PIGOTT, JR., HURLBUTT AND BALIO, JJ.
Judgment unanimously affirmed.
Memorandum:
County Court properly denied defendant's motion to suppress identification testimony. The People met their initial burden of establishing that the conduct of the police was reasonable and that the photo array was not unduly suggestive, and defendant failed to meet his "ultimate burden of proving that the procedure was unduly suggestive" ( People v. Chipp, 75 N.Y.2d 327, 335, cert denied 498 U.S. 833; see, People v. Bell, 265 A.D.2d 813 [decided Oct. 1, 1999]). The conviction is supported by legally sufficient evidence and the verdict is not against the weight of the evidence ( see, People v. Bleakley, 69 N.Y.2d 490, 495). Defendant did not preserve for our review his contention that the court erred in failing to consider or grant him youthful offender status ( see, People v. King [Ronald], 254 A.D.2d 814, lv denied 92 N.Y.2d 983; People v. Granton, 236 A.D.2d 624, 625, lv denied 89 N.Y.2d 1012), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( see, CPL 470.15 [a]).