PEOPLE v. WESTON (2011)

On appeal from a judgment convicting him upon his guilty plea of, inter alia, two counts of robbery in the first degree (Penal Law § 160.15[2] ), defendant contends that the photo array identification procedure in which his accomplice was the witness was unduly suggestive (see generally People v. Chipp, 75 N.Y.2d 327, 335, cert denied 498 U.S. 833). We reject that contention. Because “the subjects depicted in the photo array [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,” the photo array itself was not unduly suggestive (People v. Quinones, 5 AD3d 1093, 1093, lv denied 3 NY3d 646). Likewise, the circumstances in which the police presented the photo array were not unduly suggestive. During his interview with the police, the accomplice indicated that he knew the perpetrator by his nickname, “Ratchet.” Upon presenting the photo array, the police officer asked the accomplice to identify the man he knew as “Ratchet” if he could do so, but the officer neither told the accomplice that “Ratchet” was actually depicted in the photo array, nor did the officer instruct the accomplice that he was required to make an identification (see People v. Floyd, 45 AD3d 1457, 1459, lv denied 10 NY3d 810, 811, 818).

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

MEMORANDUM: