PEOPLE v. KEITA (2019)

Judgment, Supreme Court, Bronx County (Denis J. Boyle, J.), rendered October 5, 2016, convicting defendant, after a jury trial, of attempted rape in the first degree, sexual abuse in the first degree (two counts) and attempted sexual abuse in the first degree, and sentencing him to an aggregate term of seven years, unanimously affirmed.

Defendant did not preserve any of his claims regarding allegedly duplicitous counts, and we decline to review them in the interest of justice.

The court properly denied defendant's suppression motion.  We have reviewed a photograph of the lineup, and we agree with the hearing court that the age disparity between defendant and the fillers was not so noticeable as to single defendant out (see People v. Jackson, 98 N.Y.2d 555, 559, 750 N.Y.S.2d 561, 780 N.E.2d 162 [2002] ).  Defendant's other challenges to the lineup are unavailing.

Defendant did not preserve his claim that the court should have provided him with an interpreter, and we decline to review it in the interest of justice.  As an alternative holding, we reject it on the merits.  Neither defendant nor any of the attorneys who represented him ever requested any interpreter, and defendant's trial testimony cast no doubt on his ability to communicate in English, albeit with a heavy accent (see People v. Ramos, 26 N.Y.2d 272, 309 N.Y.S.2d 906, 258 N.E.2d 197 [1970] ).