Opinion
06-13-2017
The PEOPLE of the State of New York, Respondent, v. Lance OWENS, Defendant–Appellant.
Seymour W. James, Jr., The Legal Aid Society, New York (Katheryne M. Martone of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Julia P. Cohen of counsel), for respondent.
Seymour W. James, Jr., The Legal Aid Society, New York (Katheryne M. Martone of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Julia P. Cohen of counsel), for respondent.
ACOSTA, P.J., RENWICK, RICHTER, FEINMAN, WEBBER, JJ.
Judgment, Supreme Court, New York County (Cassandra M. Mullen, J. at hearing; Eduardo Padró, J. at plea and sentencing), rendered January 25, 2013, convicting defendant of robbery in the second degree, and sentencing him to a term of one to three years, unanimously affirmed.
The court properly denied defendant's suppression motion. The hearing record and our examination of a copy of a photo array support the court's finding that the array was not unduly suggestive (see People v. Chipp, 75 N.Y.2d 327, 336, 553 N.Y.S.2d 72, 552 N.E.2d 608 [1990], cert. denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70 [1990] ). The alleged discrepancies in skin tone and facial hair between defendant and the fillers were not noticeable (see e.g. People v. Sanchez, 95 A.D.3d 241, 250, 941 N.Y.S.2d 599 [1st Dept.2012], affd. 21 N.Y.3d 216, 969 N.Y.S.2d 840, 991 N.E.2d 698 [2013] ), and the fact that defendant was depicted wearing a very common article of clothing that was briefly referred to in the identifying witness's description did not call attention to defendant (see e.g. People v. Drayton, 70 A.D.3d 595, 896 N.Y.S.2d 320 [1st Dept.2010], lv. denied 15 N.Y.3d 749, 906 N.Y.S.2d 822, 933 N.E.2d 221 [2010] ).