Appeal from a judgment of the County Court of Rensselaer County (Lalor, J.), rendered August 16, 2005, upon a verdict convicting defendant of the crimes of robbery in the second degree and assault in the second degree.
Defendant was not entitled to suppression of his written statement. While a deliberate delay in arraignment for the purpose of obtaining a confession bears on the voluntariness of a confession, such an argument must be raised before the trial court to be preserved for appellate review (see People v Ramos, 99 NY2d 27, 34, 37 [2002]; People v Seeber, 4 AD3d 620, 622 [2004], affd 4 NY3d 780 [2005]). Defendant also did not argue at the suppression hearing that his statement should have been suppressed because he requested counsel prior to questioning, thus rendering that argument unpreserved, and we decline to exercise our interest of justice jurisdiction (see People v Valverde, 13 AD3d 658, 659 [2004], lv denied 4 NY3d 836 [2005]; People v Rondan, 116 AD2d 750, 752 [1986], lv denied 67 NY2d 950 [1986]; see also People v Tutt, 38 NY2d 1011, 1012-1013 [1976]; People v Durrin, 32 AD3d 665, 666 [2006]).
The photo array shown to the victim and another shopper contained photographs of individuals who looked very similar to one another and the identification procedure used by the police was not suggestive (see People v Chipp, 75 NY2d 327, 336 [1990], cert denied 498 US 833 [1990]; People v Deshields, 24 AD3d 1112, 1113 [2005], lv denied 6 NY3d 811 [2006]; People v Lind, 20 AD3d 765, 767 [2005], lv denied 5 NY3d 830 [2005]). Hence, County Court correctly denied suppression of those identifications.
The evidence was legally sufficient to establish defendant’s guilt. Robbery in the second degree is established when a person “forcibly steals property” and “[i]n the course of the commis
County Court did not err in refusing defendant’s request to charge the jury with robbery in the third degree as a lesser included offense. A crime is a lesser included offense if “it is impossible to commit the greater crime without necessarily committing the lesser and there must be a reasonable view of the evidence which would support a finding that the defendant committed only the lesser offense” (People v Barney, 99 NY2d 367, 371 [2003]; see People v Caruso, 6 AD3d 980, 983 [2004], lv denied 3 NY3d 704 [2004]). It is impossible to commit robbery in the first or second degrees without also committing robbery in the third degree, so the question here is whether any reasonable view of the evidence would support a finding that defendant committed a robbery but did not cause the victim any physical injury (see People v Calvin, 279 AD2d 812, 812 [2001], lv denied 96 NY2d 860 [2001]; compare Penal Law §§ 160.10, 160.15 with Penal Law § 160.05). With the proof at trial, either defendant did not use any force and thus did not commit a robbery, or he used force which caused the victim to fall from his moving vehicle and suffer injuries, including a broken ankle. No reasonable view of the evidence supports defendant’s assertion that he committed robbery in the third degree but not robbery in the second degree.
We will not disturb defendant’s sentence. The record does not
Cardona, P.J., Crew III, Spain and Lahtinen, JJ., concur. Ordered that the judgment is affirmed.