| People v Wyche |
| 2016 NY Slip Op 01411 |
| Decided on February 25, 2016 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on February 25, 2016
Friedman, J.P., Sweeny, Saxe, Gische, JJ.
328 3006/08
v
Kevin Wyche, Defendant-Appellant.
Seymour W. James, Jr., The Legal Aid Society, New York (Frances A. Gallagher of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Marianne Stracquadanio of counsel), for respondent.
Judgment, Supreme Court, Bronx County (Denis J. Boyle, J. at suppression hearing; Edgar G. Walker, J. at plea and sentencing), rendered February 16, 2012, convicting defendant of two counts of robbery in the second degree, and sentencing him to concurrent terms of 3½ years, unanimously affirmed.
Regardless of whether defendant's waiver of appeal was enforceable, we find that the court properly denied defendant's motion to suppress identification testimony. The People overcame the presumption of suggestiveness resulting from the nonproduction of evidence of the computerized photo arrays shown to a witness (see People v Holley, NY3d, 2015 NY Slip Op 09314 [2015]). The detective's testimony about the photo manager system and the procedures he employed was substantially similar to the testimony given in Holley. Defendant has not established that the clothing he wore in his photograph would cause him to be singled out, especially since the witness's description of the robber did not mention clothing.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 25, 2016
CLERK