Opinion
10-19-2017
The PEOPLE of the State of New York, Respondent, v. Malcolm McNEIL, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Molly Ryan of Counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Ellen Stanfield Friedman of Counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Molly Ryan of Counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Ellen Stanfield Friedman of Counsel), for respondent.
The court properly denied defendant's suppression motion. Defendant did not preserve his argument that a photo array was unduly suggestive because he was allegedly the only person in the array not looking at the camera and because his image allegedly appeared "15 to 20%" larger than those of the fillers, and we decline to review it in the interest of justice. As an alternative holding, we find that defendant, like the fillers in the photo array, was looking straight ahead and any difference in the photographs was not sufficient to create a substantial likelihood that defendant would be singled out for identification (see generally 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] ). Moreover, although suggestiveness does not turn solely on this factor ( People v. Perkins, 28 N.Y.3d 432, 45 N.Y.S.3d 860, 68 N.E.3d 679 [2016] ), we note that the alleged deficiencies in the photo array had nothing to do with the description that had been provided by the identifying witness.
MANZANET–DANIELS, J.P., MAZZARELLI, MOSKOWITZ, KAHN, and KERN, JJ., concur.