PEOPLE v. GARNER (2010)

Judgment, Supreme Court, New York County (Michael R. Ambrecht, J. at suppression hearing; Arlene R. Silverman, J. at plea and sentence), rendered September 11, 2007, convicting defendant of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony drug offender, to a term of 3 1/212 years, unanimously affirmed.

The court properly denied defendant's motion to suppress identification testimony. As part of a long-term operation, an undercover officer made a drug buy from defendant and identified him from a photo array six weeks later, and from a lineup two months after that. Neither procedure was unduly suggestive (see People v. Chipp, 75 N.Y.2d 327, 336 [1990], cert denied 498 U.S. 833 [1990] ). In each procedure, the participants were generally similar in appearance and, given the particular description given by the undercover officer, there was nothing that highlighted defendant (see e.g. People v. Carroll, 303 A.D.2d 200, 201 [2003], lv denied 100 N.Y.2d 560 [2003] ). To the extent the photo array could be viewed as suggestive, that suggestiveness was attenuated by the passage of time between the two procedures. Although the undercover officer received a copy of the photo array, there is no evidence that this influenced his lineup identification of defendant.