PEOPLE v. IVEY (2000)

 Supreme Court properly denied defendant's motion to suppress a victim's identification of defendant.   The People met their initial burden of establishing the reasonableness of the police conduct, and defendant failed to meet his ultimate burden of establishing that the photo array was unduly suggestive (see, People v. Chipp, 75 N.Y.2d 327, 335, 553 N.Y.S.2d 72, 552 N.E.2d 608, cert. denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70).   Although only one other person depicted in the photo array had hair as long as defendant's, the victim testified that defendant was wearing a hood at the time of the robbery, and there is no indication in the record that defendant's hair was a factor in the victim's identification of defendant.   The fact that defendant was photographed at a closer range than the others depicted in the photo array does not render the array unduly suggestive (see, People v. Brown, 169 A.D.2d 934, 935, 564 N.Y.S.2d 834, lv. denied 77 N.Y.2d 958, 570 N.Y.S.2d 492, 573 N.E.2d 580).   In any event, the victim viewed defendant from a distance of approximately two feet for at least one minute, and thus there was a sufficient independent basis for the victim's in-court identification of defendant (see, People v. Saulters, 255 A.D.2d 896, 682 N.Y.S.2d 740, lv. denied 92 N.Y.2d 1038, 684 N.Y.S.2d 503, 707 N.E.2d 458).

 We reject the contention of defendant that he was denied effective assistance of counsel (see, People v. Flores, 84 N.Y.2d 184, 189, 615 N.Y.S.2d 662, 639 N.E.2d 19;  People v. Rivera, 71 N.Y.2d 705, 708-709, 530 N.Y.S.2d 52, 525 N.E.2d 698).   Defendant had two different counsel, one during the pretrial stage and another during the trial.   Defendant did not specify which attorney failed to provide effective representation, nor did he identify any conduct that deprived him of a fair trial.   Contrary to defendant's contention, the verdict is not against the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   The sentence of 25 years to life, based upon defendant's status as a persistent felony offender, is neither unduly harsh nor severe.

Judgment unanimously affirmed.

MEMORANDUM: