PEOPLE v. GARCIA (2000)

Judgment, Supreme Court, New York County (Colleen McMahon, J. at hearing;  George Daniels, J. at jury trial and sentence), rendered September 11, 1997, convicting defendant of robbery in the first and second degrees and criminal possession of a weapon in the second degree, and sentencing him to concurrent terms of 25, 15 and 15 years, respectively, unanimously affirmed.

 The verdict was based on legally sufficient evidence and was not against the weight of the evidence.   Contrary to defendant's argument, the evidence of defendant's identity, which included compelling physical evidence connecting defendant to the crime, was overwhelming.

 Defendant's suppression motion was properly denied.   The fact that defendant's position in the lineup did not correspond with his number card was the result of his own choice (see, People v. Adams, 165 A.D.2d 760, 560 N.Y.S.2d 194, lv. denied 76 N.Y.2d 983, 563 N.Y.S.2d 772, 565 N.E.2d 521).

 The fact that the court's instruction on accessorial liability mentioned defendant by name did not convey an opinion as to defendant's guilt or otherwise cause any prejudice since the court's charge, read as a whole, made clear that defendant's identity as one of the perpetrators had to be established beyond a reasonable doubt.

Defendant's objection to evidence of a photographic identification was not only unpreserved but expressly waived, and we decline to review it in the interest of justice.   Were we to review this claim, we would find that defendant opened the door to the challenged testimony.

We find no reason to disturb the sentence.

MEMORANDUM DECISION.