PEOPLE v. ROSENBERG (2007)

Judgment, Supreme Court, New York County (Bonnie G. Wittner, J. at suppression hearing;  James A. Yates, J. at jury trial and sentence), rendered May 19, 2004, convicting defendant of robbery in the first and second degrees, and sentencing him to concurrent terms of 10 years, unanimously affirmed.

 Defendant failed to preserve his legal sufficiency argument, and we decline to review it in the interest of justice.   Were we to review this claim, we would find the verdict supported by legally sufficient evidence.   We also find that it was not against the weight of the evidence.   On the contrary, we conclude there was overwhelming evidence of defendant's guilt, including that he was arrested in possession of an unusual shotgun used in this robbery.   There is no basis for disturbing the jury's determinations concerning identification and credibility (see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).   Any discrepancies in the identifying witness's description of defendant were readily explained, and they were not sufficiently significant to render the identification unreliable.

 Although the victim's identification of the codefendant, who was not on trial, was not relevant to any material issue and should have been excluded, the error was harmless (see People v. Jenkins, 305 A.D.2d 287, 758 N.Y.S.2d 810 [2003], lv. denied 100 N.Y.2d 621, 767 N.Y.S.2d 404, 799 N.E.2d 627 [2003] ).

 The court properly denied defendant's motion to suppress identification testimony.   The record supports the hearing court's finding that, in both the photo array and the lineup, there was no readily apparent or sufficiently significant difference between defendant's appearance and that of the fillers to cause him to be wrongly singled out for identification (see People v. Chipp, 75 N.Y.2d 327, 336, 553 N.Y.S.2d 72, 552 N.E.2d 608 [1990], cert. denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70 [1990] ).   Defendant's assertion that another person may have influenced the witness's identification of defendant rests only on speculation.