PEOPLE v. ANTHONY (2005)

Appeal by the defendant from a judgment of the County Court, Rockland County (Kelly, J.), rendered January 19, 2000, convicting him of murder in the second degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress identification testimony.

ORDERED that the judgment is affirmed.

 The hearing court providently exercised its discretion in balancing the probative value of allowing the People to introduce evidence of the defendant's prior convictions against any prejudicial effect on his defense (see People v. Hayes, 97 N.Y.2d 203, 207-208, 738 N.Y.S.2d 663, 764 N.E.2d 963;  People v. Gray, 84 N.Y.2d 709, 712, 622 N.Y.S.2d 223, 646 N.E.2d 444;  People v. Walker, 83 N.Y.2d 455, 459, 611 N.Y.S.2d 118, 633 N.E.2d 472;  People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413;  People v. Kelland, 208 A.D.2d 954, 618 N.Y.S.2d 96;  People v. Overton, 192 A.D.2d 624, 596 N.Y.S.2d 155).

The hearing court properly declined to suppress identification testimony at trial, since neither the photo array nor the line-up procedure was unduly suggestive (see CPL § 710.20[6];  United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149;  People v. Chipp, 75 N.Y.2d 327, 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;  People v. Callender, 8 A.D.3d 294, 777 N.Y.S.2d 656;  People v. Richards, 2 A.D.3d 883, 769 N.Y.S.2d 738;  People v. Torres, 309 A.D.2d 823, 824, 765 N.Y.S.2d 650;  People v. Wright, 297 A.D.2d 391, 746 N.Y.S.2d 611;  People v. Shaw, 251 A.D.2d 686, 677 N.Y.S.2d 796;  People v. Stackhouse, 201 A.D.2d 686, 608 N.Y.S.2d 252).

 The defendant's contention that the evidence was legally insufficient to establish his guilt beyond a reasonable doubt is unpreserved for appellate review, since defense counsel made only a general motion to dismiss at the close of the People's case and at the close of the evidence (see CPL § 470.05[2];  People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919;  People v. Seabrooks, 289 A.D.2d 515, 735 N.Y.S.2d 590).   In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.   Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL § 470.15[5] ).