Opinion
1999-05989
January 23, 2003.
February 13, 2003.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Greenberg, J.), rendered June 23, 1999, convicting him of robbery in the first 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.
Andrew C. Fine, New York, N.Y. (Kerry Elgarten, David Crow, and Hunton Williams [Jeffrey W. Gutchess, Louis-Simon Ferland, Vanessa E. Tollis, and Christina Y. Song] of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Victor Barall, and Kelley Drye Warren, LLP [Christopher C. Panarella] of counsel), for respondent.
Before: NANCY E. SMITH, J.P., GLORIA GOLDSTEIN, STEPHEN G. CRANE, REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the photographic identification procedure was not unduly suggestive because the complainant viewed many photographs before viewing and selecting the defendant's photograph (see People v. Hunte, 276 A.D.2d 717; People v. Wimbush, 210 A.D.2d 517; see also People v. Chipp, 75 N.Y.2d 327, cert denied 498 U.S. 833).
The defendant's contention that the evidence adduced at trial was legally insufficient to establish his identity as the perpetrator is unpreserved for appellate review (see CPL 470.05; People v. Gaines, 293 A.D.2d 550; People v. Udzinski, 146 A.D.2d 245). In any event, 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 beyond a reasonable doubt that the defendant committed the crime of robbery in the first degree (see Penal Law § 160.15). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt on that count was not against the weight of the evidence (see CPL 470.15).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 93).
The defendant's remaining contentions are without merit.
SMITH, J.P., GOLDSTEIN, CRANE and RIVERA, JJ., concur.