| People v McNeil |
| 2017 NY Slip Op 07330 |
| Decided on October 19, 2017 |
| 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 October 19, 2017
Manzanet-Daniels, J.P., Mazzarelli, Moskowitz, Kahn, Kern, JJ.
4750 2887/12
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.
Judgment, Supreme Court, New York County (Thomas Farber, J. at suppression hearing; Robert Stolz, J. at plea and sentencing), rendered July 17, 2013, convicting defendant of robbery in the first degree, and sentencing him, as a second violent felony offender, to a term of 10 years, unanimously affirmed.
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 NY2d 327, 336 [1990], cert denied 498 US 833 [1990]). Moreover, although suggestiveness does not turn solely on this factor (People v Perkins, 28 NY3d 432 [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.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: OCTOBER 19, 2017
CLERK