PEOPLE v. PRICE (1998)

Appeal by the defendant from a judgment of the County Court, Westchester County (Sise, J.), rendered July 26, 1996, convicting him of robbery in the first degree (two counts) and criminal possession of a weapon in the second 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 evidence.

ORDERED that the judgment is affirmed.

 The defendant's claim that the six-photo array was unduly suggestive is without merit.   There is no requirement that the defendant be surrounded by individuals nearly identical to him in appearance during identification procedures.   The array here does not draw the viewer's attention to the defendant's photograph, nor does the lighting background of the defendant's photo make it stand out from the others (see, People v. Font, 223 A.D.2d 600, 637 N.Y.S.2d 16;  People v. Guzman, 220 A.D.2d 614, 632 N.Y.S.2d 594).

Testimony was presented at the Wade hearing which established that the victim observed the defendant at close range and under good lighting conditions for approximately five to six minutes.   The hearing court concluded, and we agree, that even if the identification procedure had been unduly suggestive, the victim's in-court identification of the defendant would still have been admissible since there was an independent source for the witness's in-court identification (see, People v. Steward, 206 A.D.2d 397, 614 N.Y.S.2d 56).

 Resolution of issues of credibility, as well as the weight to be accorded to the evidence presented are primarily questions to be determined by the jury, which saw and heard the witnesses (see, People v. Gaimari, 176 N.Y. 84, 68 N.E. 112).   Its determination should be accorded great weight on appeal and should not be disturbed unless clearly unsupported by the record (see, People v. Garafolo, 44 A.D.2d 86, 88, 353 N.Y.S.2d 500).   Contrary to the defendant's assertion on appeal, we are satisfied that the verdict of guilt was not against the weight of the evidence.

 The sentence imposed was not excessive (see, People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).   Although the defendant notes that prior to the conclusion of his trial in the instant matter he was offered a plea with a promise of a more favorable sentence if he pleaded guilty, it is well established that a sentence imposed after trial may be more severe than one imposed in connection with a negotiated plea of guilty (see, People v. Webb, 233 A.D.2d 469, 650 N.Y.S.2d 252).

The defendant's remaining contentions are either unpreserved for appellate review or without merit.

MEMORANDUM BY THE COURT.