PEOPLE v. BOYD (2008)

 Defendant appeals from a judgment convicting him upon his plea of guilty of criminal possession of a weapon in the third degree (Penal Law § 265.02[3] ).  Contrary to defendant's contention, County Court properly refused to suppress the victim's identification of defendant.  The evidence adduced at the suppression hearing does not support defendant's contention that the conduct of the police while showing the victim the photo array was unduly suggestive (see generally People v. Chipp, 75 N.Y.2d 327, 335–336, 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).  Nor do we agree with defendant that the photo array itself was unduly suggestive.  The six individuals depicted in the photo array appeared to be of the same race and approximately the same age, and they had similar haircuts and facial features.  Thus, the array did not “ ‘create a substantial likelihood that the defendant would be singled out for identification’ ” (People v. Corchado, 299 A.D.2d 843, 844, 749 N.Y.S.2d 814, lv. denied 99 N.Y.2d 581, 755 N.Y.S.2d 716, 785 N.E.2d 738, quoting Chipp, 75 N.Y.2d at 336, 553 N.Y.S.2d 72, 552 N.E.2d 608).

 We further conclude that the court properly refused to suppress the handgun found in defendant's van.  Upon observing the handgun in the course of an inventory search, the police stopped their inventory search and applied for a search warrant.  We conclude that the inventory search was conducted pursuant to established police policy and resulted in a meaningful inventory list (see People v. Johnson, 1 N.Y.3d 252, 256–257, 771 N.Y.S.2d 64, 803 N.E.2d 385), and we conclude that the inventory search and the decision of the police to impound the vehicle were reasonable under the circumstances (see People v. Galak, 80 N.Y.2d 715, 718, 594 N.Y.S.2d 689, 610 N.E.2d 362).  The victim had identified defendant as one of the perpetrators and indicated that the perpetrators were driving a green van.  Further, defendant was found in the vehicle repair shop where the van was located at the time of his arrest, and the van was registered to his wife.  Contrary to defendant's further contention, the search warrant was supported by probable cause (see generally People v. Bigelow, 66 N.Y.2d 417, 423, 497 N.Y.S.2d 630, 488 N.E.2d 451).  Defendant's contention that the search warrant was defective for failure to comply with the requirements of CPL 690.35(3) and CPL 690.45 is unpreserved for our review and, in any event, that contention is without merit.

 Finally, because defendant failed to move to withdraw his guilty plea or to vacate the judgment of conviction, his challenge to the factual sufficiency of the plea allocution is not preserved for our review (see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5;  People v. Farnsworth, 32 A.D.3d 1176, 820 N.Y.S.2d 832, lv. denied 7 N.Y.3d 867, 824 N.Y.S.2d 612, 857 N.E.2d 1143;  People v. Abdallah, 23 A.D.3d 1116, 803 N.Y.S.2d 484, lv. denied 6 N.Y.3d 845, 816 N.Y.S.2d 751, 849 N.E.2d 974), and this case does not fall within the narrow exception to the preservation requirement (see Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5).

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

MEMORANDUM: