In any event, our review of the photographs of the lineup establishes that the fillers sufficiently resembled the defendant so as not to render the lineup unduly suggestive ( see People v Saunders, 306 AD2d at 503). Moreover, the detective's comment likewise did not render the lineup unduly suggestive ( see People v Brennin, 184 AD2d 715, 716). Inasmuch as the lineup was not unduly suggestive, the defendant's contention that the Supreme Court should have held an independent source hearing because of the alleged undue suggestiveness of the lineup is without merit ( see People v Fields, 66 AD3d 799; People v Brown, 47 AD3d 826, 827). The defendant claims that the Supreme Court erred in refusing to continue the suppression hearing to allow defense counsel to further examine the credibility of the detectives who testified.
The defendant's contention that the photographic identification procedure was unduly suggestive is unpreserved for appellate review, since he failed, at a Wade hearing ( see United States v Wade, 388 US 218), to raise the specific grounds upon which he now challenges the procedure ( see CPL 470.05; People v Fields, 66 AD3d 799; People v Lago, 60 AD3d 784, 784-785). In any event, the defendant's claim that the photographs of the fillers used in the six-person photo array were so dissimilar in appearance from his own photograph that they rendered the array unduly suggestive is not supported by the record ( see People v Seymour, 77 AD3d 976, 978; People v Russell, 58 AD3d 759, 760; People v Howard, 50 AD3d 823; People v Ragunauth, 24 AD3d 472, 472-473).
The Supreme Court properly denied, after a hearing, that branch of the defendant's omnibus motion which was to suppress identification evidence. In determining whether a photographic array displayed to an eyewitness was unduly suggestive, the hearing court properly determined that there was not a substantial likelihood that the defendant would be singled out for identification. Two separate showings of a suspect's picture in successive photographic arrays are not per se impermissibly suggestive, even if that suspect is the only person whose photo was repeated in the successive photographic arrays ( see People v. Dunlap, 9 A.D.3d 434, 435, 780 N.Y.S.2d 171). Furthermore, the large number of photographs viewed by the complainant herein militates against the presence of suggestiveness ( see People v. Fields, 66 A.D.3d 799, 887 N.Y.S.2d 182). As the photo identification procedure was not unduly suggestive, the People were not required to establish an independent source for the in-court identification of the defendant ( see People v. Fields, 66 A.D.3d 799, 887 N.Y.S.2d 182). Contrary to the People's contention, the defendant's argument that the evidence was legally insufficient to support his convictions of robbery in the first degree and unlawful imprisonment in the second degree is preserved for appellate review ( seeCPL 470.05[2] ). Viewing the evidence in the light most favorable to the prosecution ( see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), the evidence was legally sufficient to establish the defendant's guilt of robbery in the first degree and unlawful imprisonment in the second degree ( seePenal Law §§ 160.15[4]; 135.05).
The defendant's contention, raised in his pro se supplemental brief, that the lineup identification procedure was unduly suggestive, is unpreserved for appellate review, since at the Wade hearing ( seeUnited States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149), he failed to raise the specific grounds upon which he now challenges the procedure ( seeCPL 470.05[2]; People v. Fields, 66 A.D.3d 799, 799, 887 N.Y.S.2d 182;People v. Lago, 60 A.D.3d 784, 784–785, 875 N.Y.S.2d 178). In any event, the People established in the first instance that the lineup procedure was not improper, and the defendant failed to establish that the procedure was unduly suggestive ( seePeople v. Chipp, 75 N.Y.2d 327, 335–336, 553 N.Y.S.2d 72, 552 N.E.2d 608,cert. denied498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70).
McDermott further testified that Clyne viewed approximately 54 pages, or 324 photographs, before identifying the defendant, while Seeram viewed approximately 32 pages, or 192 photographs, before he identified the defendant. This Court has consistently recognized that where, as here, "a photographic identification procedure involves showing a witness a preexisting file consisting of a large number of photographs, the sheer volume and scope of [the] procedure militates against the presence of suggestiveness'" (People v Mason, 138 AD2d 411, 412, quoting People v Jerome, 111 AD2d 874, 874; see People v Fields, 66 AD3d 799, 799; People v Ashby, 289 AD2d 588, 588; People v Burgos, 204 AD2d 344, 345; People v Faulk, 192 AD2d 717, 717; People v Stokes, 139 AD2d 785, 785; People v Ludwigsen, 128 AD2d 810, 810). The majority's reliance on People v Dobbins (112 AD3d 735) is misplaced.
McDermott further testified that Clyne viewed approximately 54 pages, or 324 photographs, before identifying the defendant, while Seeram viewed approximately 32 pages, or 192 photographs, before he identified the defendant.This Court has consistently recognized that where, as here, “a photographic identification procedure involves showing a witness a preexisting file consisting of a large number of photographs, the ‘sheer volume and scope of [the] procedure militates against the presence of suggestiveness' ” (People v. Mason, 138 A.D.2d 411, 412, 525 N.Y.S.2d 694, quoting People v. Jerome, 111 A.D.2d 874, 874, 490 N.Y.S.2d 790 ; see People v. Fields, 66 A.D.3d 799, 799, 887 N.Y.S.2d 182 ; People v. Ashby, 289 A.D.2d 588, 588, 735 N.Y.S.2d 715 ; People v. Burgos, 204 A.D.2d 344, 345, 611 N.Y.S.2d 605 ; People v. Faulk, 192 A.D.2d 717, 717, 597 N.Y.S.2d 148 ; People v. Stokes, 139 A.D.2d 785, 785, 527 N.Y.S.2d 529 ; People v. Ludwigsen, 128 A.D.2d 810, 810, 513 N.Y.S.2d 513 ). The majority's reliance on People v. Dobbins, 112 A.D.3d 735, 976 N.Y.S.2d 213 is misplaced.
The officer testified that approximately 230 photographs fit the search criteria that was entered into the photo manager system and that these photographs were displayed in arrays consisting of six photographs at a time. Under the circumstances, the People sustained their initial burden of demonstrating the reasonableness of the police conduct and the lack of any undue suggestiveness ( see People v Holley, 26 NY3d at 524-525; People v Chipp, 75 NY2d at 335; see also People v Fields, 66 AD3d 799; People v Ashby, 289 AD2d 588; People v Jerome, 111 AD2d 874). Furthermore, upon our review of the record of the hearing, we conclude that the defendant failed to sustain his ultimate burden of proving that the photo identification procedure was unduly suggestive ( see People v Holley, 26 NY3d at 524-525). Accordingly, the Supreme Court properly denied that branch of the defendant's omnibus motion which was to suppress the lineup identification testimony on the ground that the photo identification procedure was unduly suggestive.
The officer testified that approximately 230 photographs fit the search criteria that was entered into the photo manager system and that these photographs were displayed in arrays consisting of six photographs at a time. Under the circumstances, the People sustained their initial burden of demonstrating the reasonableness of the police conduct and the lack of any undue suggestiveness (see People v. Holley, 26 N.Y.3d at 524–525, 25 N.Y.S.3d 40, 45 N.E.3d 936 ; People v. Chipp, 75 N.Y.2d at 335, 553 N.Y.S.2d 72, 552 N.E.2d 608 ; see also People v. Fields, 66 A.D.3d 799, 887 N.Y.S.2d 182 ; People v. Ashby, 289 A.D.2d 588, 735 N.Y.S.2d 715 ; People v. Jerome, 111 A.D.2d 874, 490 N.Y.S.2d 790 ). Furthermore, upon our review of the record of the hearing, we conclude that the defendant failed to sustain his ultimate burden of proving that the photo identification procedure was unduly suggestive (see People v. Holley, 26 N.Y.3d at 524–525, 25 N.Y.S.3d 40, 45 N.E.3d 936 ). Accordingly, the Supreme Court properly denied that branch of the defendant's omnibus motion which was to suppress the lineup identification testimony on the ground that the photo identification procedure was unduly suggestive.
tention that the Supreme Court abdicated its judicial function by allowing prospective jurors who concluded that they could not be fair and impartial to opt out of serving on the jury without further inquiry is unpreserved for appellate review (see CPL 470.05[2] ; People v. King, 27 N.Y.3d 147, 157, 31 N.Y.S.3d 402, 50 N.E.3d 869 ; People v. Santos, 150 A.D.3d 1270, 1271, 52 N.Y.S.3d 885 ; People v. Cunningham, 119 A.D.3d 601, 601, 988 N.Y.S.2d 696 ; People v. McGhee, 4 A.D.3d 485, 485, 772 N.Y.S.2d 344 ) and, in any event, without merit. The defendant's contention, raised in his pro se supplemental brief, that the photo array and lineup identification procedures were unduly suggestive is unpreserved for appellate review, since, at the Wade hearing (see United States v. Wade , 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 ), he failed to raise the specific grounds upon which he now challenges the procedures (see CPL 470.05[2] ; People v. Martin , 116 A.D.3d 981, 982, 983 N.Y.S.2d 813 ; People v. Fields , 66 A.D.3d 799, 799, 887 N.Y.S.2d 182 ). In any event, the People established in the first instance that the pretrial identification procedures were not improper, and the defendant failed to establish that they were unduly suggestive (see People v. Chipp , 75 N.Y.2d 327, 335–336, 553 N.Y.S.2d 72, 552 N.E.2d 608 ; People v. Martin , 116 A.D.3d at 982, 983 N.Y.S.2d 813 ).
The detective testified that the complainant was shown the computer-generated photo arrays a day after the incident occurred and then again three days later. The detective's unrebutted testimony established that 700 to 1,000 photographs were generated by the photo manager system, which were displayed in smaller arrays of photographs, from which, during the third viewing session, the complainant identified the defendant as the person who assaulted her (see id. ). "[W]hen a photographic identification procedure involves showing a witness a preexisting file consisting of a large number of photographs, the ‘sheer volume and scope of [the] procedure militates against the presence of suggestiveness’ " ( People v. Mason, 138 A.D.2d 411, 412, 525 N.Y.S.2d 694, quoting People v. Jerome, 111 A.D.2d 874, 874, 490 N.Y.S.2d 790 ; seePeople v. Fields, 66 A.D.3d 799, 887 N.Y.S.2d 182 ). Moreover, the complainant eventually identified the defendant in a lineup.