Opinion
No. KA 06-01227.
February 1, 2008.
Appeal from a judgment of the Niagara County Court (Sara S. Sperrazza, J.), rendered February 3, 2006. The judgment convicted defendant, upon a jury verdict, of manslaughter in the first degree and criminal possession of a weapon in the second degree.
ROBERT M. PUSATERI, CONFLICT DEFENDER, LOCKPORT (EDWARD P. PERLMAN OF COUNSEL), FOR DEFENDANT-APPELLANT.
MATTHEW J. MURPHY, III, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF COUNSEL), FOR RESPONDENT.
Before: Hurlbutt, J.P., Smith, Centra, Green and Pine, JJ.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of manslaughter in the first degree (Penal Law § 125.20) and criminal possession of a weapon in the second degree (former § 265.03 [2]), defendant contends that a pretrial identification procedure was unduly suggestive based on the fact that a witness made a confirmatory identification of defendant using a single photograph. Defendant failed to preserve his contention for our review ( see CPL 470.05; People v Miller, 43 AD3d 1381) and, in any event, defendant's contention is without merit. The witness had known defendant for 10 years and had given his name to the police. Thus, "the witness [was] so familiar with the defendant that there [was] `little or no risk' that police suggestion could lead to a misidentification" ( People v Rodriguez, 79 NY2d 445, 450). Contrary to the further contention of defendant, he was not prejudiced by the pretrial identification procedure used with respect to a second witness inasmuch as that witness did not testify at trial. Finally, we conclude that the sentence is not un-duly harsh or severe.