PEOPLE v. POWELL (2006)

On appeal from a judgment convicting him following a jury trial of assault in the second degree (Penal Law § 120.05[4] ) and reckless endangerment in the second degree (§ 120.20), defendant contends that Supreme Court erred in refusing to suppress the in-court identification of him by the victim and a witness to the crimes on the ground that the photo array was unduly suggestive.   We reject that contention.   We conclude with respect to the photo array that the individuals depicted therein were “sufficiently similar in appearance so that the viewer's attention [was] not drawn to any one photograph in such a way as to indicate that the police were urging a particular selection” (People v. Quinones, 5 A.D.3d 1093, 1093, 773 N.Y.S.2d 671, lv. denied 3 N.Y.3d 646, 782 N.Y.S.2d 417, 816 N.E.2d 207;  see People v. Emm, 23 A.D.3d 983, 804 N.Y.S.2d 880).   Although defendant is the only person depicted therein with braided hair, that fact alone does not establish that the photo array was unduly suggestive (see People v. Martinez, 298 A.D.2d 897, 897-898, 749 N.Y.S.2d 118, lv. denied 98 N.Y.2d 769, 752 N.Y.S.2d 10, 781 N.E.2d 922, cert. denied 538 U.S. 963, 123 S.Ct. 1752, 155 L.Ed.2d 515, reh. denied 539 U.S. 911, 123 S.Ct. 2266, 156 L.Ed.2d 126;  People v. Merriweather, 298 A.D.2d 950, 748 N.Y.S.2d 105, lv. denied 99 N.Y.2d 561, 754 N.Y.S.2d 213, 784 N.E.2d 86).   We have examined the further challenge of defendant to the victim's in-court identification of him and conclude that it is lacking in merit.

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

MEMORANDUM: