PEOPLE v. WALDEN (2007)

On appeal from a judgment convicting him upon his plea of guilty of robbery in the third degree (Penal Law § 160.05), defendant contends that the identification procedure was impermissibly suggestive because the victim was shown two photo arrays within a three-day period.   We reject that contention (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).   The victim identified defendant in the first photo array, which contained black-and-white photographs, and her identification of defendant in the second photo array, which contained color photographs but otherwise was identical to the first photo array, was merely confirmatory of the first identification (see People v. Floyd, 135 A.D.2d 650, 522 N.Y.S.2d 474, lv. denied 70 N.Y.2d 1006, 526 N.Y.S.2d 940, 521 N.E.2d 1083;  see generally People v. Rodriguez, 64 N.Y.2d 738, 740-741, 485 N.Y.S.2d 976, 475 N.E.2d 443).

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

MEMORANDUM: