Opinion
412 KA 18-00918
05-07-2021
The PEOPLE of the State of New York, Respondent, v. Kevin JOHNSON, Defendant-Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (BRIDGET L. FIELD OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JESSICA N. CARBONE OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (BRIDGET L. FIELD OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JESSICA N. CARBONE OF COUNSEL), FOR RESPONDENT.
PRESENT: CARNI, J.P., LINDLEY, NEMOYER, CURRAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of burglary in the first degree ( Penal Law § 140.30 [2] ). We affirm. Defendant's contention that he did not knowingly, intelligently, or voluntarily plead guilty is not preserved for our review because he did not move to withdraw the plea or to vacate the judgment of conviction (see People v. Wilkes , 160 A.D.3d 1491, 1491, 76 N.Y.S.3d 342 [4th Dept. 2018], lv denied 31 N.Y.3d 1154, 83 N.Y.S.3d 436, 108 N.E.3d 510 [2018] ; People v. Darling , 125 A.D.3d 1279, 1279, 1 N.Y.S.3d 717 [4th Dept. 2015], lv denied 25 N.Y.3d 1071, 12 N.Y.S.3d 622, 34 N.E.3d 373 [2015] ; People v. Boyd , 101 A.D.3d 1683, 1683, 956 N.Y.S.2d 382 [4th Dept. 2012] ), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c] ).
Defendant's contention that County Court erred in refusing to suppress identification testimony on the ground that the photo array used in the identification procedure was unduly suggestive is unpreserved because he did not raise "the specific grounds upon which he now challenges the procedure" at the suppression hearing ( People v. Lago , 60 A.D.3d 784, 784, 875 N.Y.S.2d 178 [2d Dept. 2009], lv denied 13 N.Y.3d 746, 886 N.Y.S.2d 100, 914 N.E.2d 1018 [2009] ; see generally CPL 470.05 [2] ; People v. Cruz , 89 A.D.3d 1464, 1465, 932 N.Y.S.2d 650 [4th Dept. 2011], lv denied 18 N.Y.3d 993, 945 N.Y.S.2d 647, 968 N.E.2d 1003 [2012] ). In any event, the evidence adduced at the hearing established that the various persons depicted in the photo array were sufficiently similar in appearance to defendant that the pretrial identification procedure was not unduly suggestive, inasmuch as "the viewer's attention was not drawn to any one photograph in such a way as to indicate that the police were urging a particular selection" ( People v. Johnson , 126 A.D.3d 1326, 1327, 5 N.Y.S.3d 641 [4th Dept. 2015], lv denied 25 N.Y.3d 1166, 15 N.Y.S.3d 298, 36 N.E.3d 101 [2015] ; see People v. Linder , 114 A.D.3d 1200, 1201, 979 N.Y.S.2d 754 [4th Dept. 2014], lv denied 23 N.Y.3d 1022, 992 N.Y.S.2d 805, 16 N.E.3d 1285 [2014] ). We thus conclude that the court properly determined that the People met their initial burden of establishing that the police conduct with respect to the photo array procedure was reasonable and that defendant failed to meet his ultimate burden of proving that the procedure was unduly suggestive (see People v. Logan , 178 A.D.3d 1386, 1387, 116 N.Y.S.3d 835 [4th Dept. 2019], lv denied 35 N.Y.3d 1028, 126 N.Y.S.3d 42, 149 N.E.3d 880 [2020] ; see generally People v. Chipp , 75 N.Y.2d 327, 335, 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] ).