Opinion
KA 00-01477.
December 31, 2003.
Appeal from a judgment of Erie County Court (D'Amico, J.), entered May 24, 2000, convicting defendant after a jury trial of, inter alia, attempted assault in the first degree.
MICHAEL J. STACHOWSKI, P.C., BUFFALO (MICHAEL J. STACHOWSKI OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (DONNA A. MILLING OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: PRESENT: PIGOTT, JR., P.J., GREEN, HURLBUTT, SCUDDER, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: We reject defendant's contention that County Court erred in discharging a sworn juror ( see People v. Zeigler, 305 A.D.2d 1100, lv denied 100 N.Y.2d 626). We also reject the further contention of defendant that he was denied effective assistance of counsel based upon defense counsel's prior representation of the victim and another prosecution witness on unrelated criminal charges. The court conducted a Gomberg inquiry ( see People v. Gomberg, 38 N.Y.2d 307), advised defendant of the potential conflict, and defendant agreed to defense counsel's continuing representation ( see People v. Smith, 306 A.D.2d 859, 860, lv denied 100 N.Y.2d 587; People v. Griffin, 249 A.D.2d 244, 245, lv denied 92 N.Y.2d 898).
The court properly denied that part of defendant's motion seeking to suppress the identification of defendant from a photo array. "[A]lthough the hairstyles of the men depicted in the array are not identical, `"[t]he viewer's attention is not drawn to defendant's photo in such a way as to indicate that the police were urging a particular selection"'" ( People v. Martinez, 298 A.D.2d 897, 897-898, lv denied 98 N.Y.2d 769, cert denied ___ U.S. ___, 123 S.Ct 1752, reh denied ___ U.S. ___, 123 S.Ct 2266). The court also properly denied that part of defendant's motion seeking to suppress the identification of defendant from a lineup. "The issue involved in ascertaining the validity of a lineup identification concerns `undue suggestiveness[,]' which is determined by considering the totality of the circumstances surrounding the lineup" ( People v. Rodriguez, 124 A.D.2d 611, 612). An argument between defense counsel and the prosecutor in the presence of lineup witnesses following the lineup cannot be said to have affected the validity of the lineup identification. Finally, the verdict is not against the weight of the evidence ( see People v. Bleakley, 69 N.Y.2d 490, 495).