PEOPLE v. SMILEY (2008)

 Defendant appeals from a judgment convicting him, upon his plea of guilty, of rape in the first degree (Penal Law § 130.35[1] ).   Defendant's sole contention on appeal is that County Court erred in denying that part of defendant's omnibus motion seeking to suppress the identification testimony of two witnesses on the ground that the photo array used in the pretrial identification procedures was unduly suggestive.   That contention is without merit.  “A photo array is unduly suggestive ‘where some characteristic of one picture draws the viewer's attention to it, indicating that the police have made a particular selection’ ” (People v. Diggs, 19 A.D.3d 1098, 1098, 796 N.Y.S.2d 802, lv. denied 5 N.Y.3d 787, 801 N.Y.S.2d 808, 835 N.E.2d 668, rearg. granted 21 A.D.3d 1438, 801 N.Y.S.2d 551, quoting People v. Robert, 184 A.D.2d 597, 598, 585 N.Y.S.2d 445, lv. denied 80 N.Y.2d 929, 933, 589 N.Y.S.2d 857, 861, 603 N.E.2d 962, 966).   Here, “[t]he composition and presentation of the photo array were such that there was no reasonable possibility that the attention of the witness[es] would be drawn to defendant as the suspect chosen by the police” (People v. Sylvester, 32 A.D.3d 1226, 1227, 821 N.Y.S.2d 345, lv. denied 7 N.Y.3d 929, 827 N.Y.S.2d 698, 860 N.E.2d 1000;  see People v. Dean, 28 A.D.3d 1118, 815 N.Y.S.2d 380, lv. denied 7 N.Y.3d 787, 821 N.Y.S.2d 817, 854 N.E.2d 1281;  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).   Contrary to defendant's contention, the differences in skin tone and head size of the individuals depicted in the photo array were not so great as to indicate that the police were urging a particular selection (see People v. Quinones, 5 A.D.3d 1093, 1093-1094, 773 N.Y.S.2d 671, lv. denied 3 N.Y.3d 646, 782 N.Y.S.2d 417, 816 N.E.2d 207;  People v. Boria, 279 A.D.2d 585, 586, 719 N.Y.S.2d 682, lv. denied 96 N.Y.2d 781, 725 N.Y.S.2d 645, 749 N.E.2d 214).

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

MEMORANDUM: