Opinion
No. 883 KA 20-00326
11-17-2023
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. MICHAEL D. GANDY, DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SUSAN R. HUTCHISON OF COUNSEL), FOR DEFENDANT-APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DANIEL J. MATTLE OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SUSAN R. HUTCHISON OF COUNSEL), FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DANIEL J. MATTLE OF COUNSEL), FOR RESPONDENT.
PRESENT: LINDLEY, J.P., CURRAN, MONTOUR, OGDEN, AND NOWAK, JJ.
Appeal from a judgment of the Supreme Court, Erie County (Russell P. Buscaglia, A.J.), rendered February 7, 2020. The judgment convicted defendant, upon a guilty plea, of attempted robbery in the first degree and criminal possession of a weapon in the second degree.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of attempted robbery in the first degree (Penal Law §§ 110.00, 160.15 [2]) and criminal possession of a weapon in the second degree (§ 265.03 [3]).
We agree with defendant that he did not validly waive his right to appeal (see People v Franklin, 217 A.D.3d 1427, 1427 [4th Dept 2023]; see generally People v Thomas, 34 N.Y.3d 545, 565-566 [2019], cert denied - U.S. -, 140 S.Ct. 2634 [2020]). Nevertheless, we reject defendant's contention that Supreme Court erred in refusing to suppress identification evidence on the ground that the photo array from which a witness identified him was unduly suggestive. Although defendant was the only person depicted in a red shirt in the photo array, the shirt was "not so distinctive as to be conspicuous" (People v LaCross, 175 A.D.3d 1838, 1838 [4th Dept 2019], lv denied 34 N.Y.3d 1130 [2020]). Nor did slight differences in the background color of the photographs taint the photo array. The mere fact that defendant's photograph "has a slightly [darker] background than [some of] the others does not support the conclusion that the identification procedure was unduly suggestive" (People v Evans, 137 A.D.3d 1683, 1683 [4th Dept 2016], lv denied 27 N.Y.3d 1131 [2016]). Finally, contrary to defendant's contention, his sentence is not unduly harsh or severe.