Opinion
November 15, 1991
Appeal from the Genesee County Court, Morton, J.
Present — Callahan, A.P.J., Denman, Green, Pine and Davis, JJ.
Judgment unanimously affirmed. Memorandum: We find no merit to defendant's claim that the photographic array shown to a witness was unduly suggestive. Although defendant claims that he was the only Hispanic in the photo array, we note that it depicts six males all about the same age with similar facial features and was not so suggestive that the witness's attention was drawn to only one subject (see, People v. Davis, 148 A.D.2d 952, lv denied 74 N.Y.2d 663; People v. Dubois, 140 A.D.2d 619, 622, lv denied 72 N.Y.2d 911). Defendant's claim that the photo array was unduly suggestive is further belied by the fact that the victim of the crime was unable to identify defendant after viewing the same photo array within days after the crime. Moreover, the record does not support defendant's further claim that the identification procedure was unduly suggestive.
By pleading guilty, defendant has waived appellate review of his argument that the court erred in denying his motion to dismiss the indictment based upon defective Grand Jury proceedings (see, CPL 210.35; People v. Del Carpio, 166 A.D.2d 605, 606, lv denied 76 N.Y.2d 1020; People v. Thomas, 74 A.D.2d 317, 321, affd 53 N.Y.2d 338). In our view, this case does not fall within the exceptions enunciated in People v. Pelchat ( 62 N.Y.2d 97, 106) and People v. Alexander ( 136 A.D.2d 332, 335-337). Furthermore, County Court properly denied defendant's motion to dismiss, made on the eve of trial, as untimely (see, CPL 255.10 [a]; 255.20 [1], [3]; People v. Key, 45 N.Y.2d 111, 116; People v. Piasta, 136 A.D.2d 887, lv denied 71 N.Y.2d 1031).
We have reviewed defendant's additional claims of error in his pro se brief and find them to be without merit.