THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. MICHAEL GANDY DEFENDANT APPELLANT (2023)

MEMORANDUM AND ORDER

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

Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of attempted robbery in the first degree (Penal Law §§ 110.00, 160.15 [2]) and criminal possession of a weapon in the second degree (§ 265.03 [3]).

We agree with defendant that he did not validly waive his right to appeal (see People v Franklin, 217 AD3d 1427, 1427 [4th Dept 2023]; see generally People v Thomas, 34 NY3d 545, 565-566 [2019], cert denied — US —, 140 S Ct 2634 [2020]). Nevertheless, we reject defendant's contention that Supreme Court erred in refusing to suppress identification evidence on the ground that the photo array from which a witness identified him was unduly suggestive. Although defendant was the only person depicted in a red shirt in the photo array, the shirt was “not so distinctive as to be conspicuous” (People v LaCross, 175 AD3d 1838, 1838 [4th Dept 2019], lv denied 34 NY3d 1130 [2020]). Nor did slight differences in the background color of the photographs taint the photo array. The mere fact that defendant's photograph “has a slightly [darker] background than [some of] the others does not support the conclusion that the identification procedure was unduly suggestive” (People v Evans, 137 AD3d 1683, 1683 [4th Dept 2016], lv denied 27 NY3d 1131 [2016]). Finally, contrary to defendant's contention, his sentence is not unduly harsh or severe.

Entered: November 17, 2023

Ann Dillon Flynn

Clerk of the Court