PEOPLE v. BACCHUS (2008)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Eng, J.), rendered April 11, 2006, convicting him of assault in the second degree and criminal possession of a weapon in the fourth degree, after a nonjury trial, 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 contention that identification evidence should have been suppressed because the lineup was unduly suggestive is without merit.   The defendant's physical characteristics were sufficiently similar to the other participants in the lineup so as to negate any likelihood that he would be singled out for identification (see People v. Jackson, 98 N.Y.2d 555, 559, 750 N.Y.S.2d 561, 780 N.E.2d 162, quoting 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. Washington, 40 A.D.3d 1136, 1137, 837 N.Y.S.2d 272;  People v. Davis, 27 A.D.3d 761, 815 N.Y.S.2d 612;  People v. Peterkin, 27 A.D.3d 666, 667, 815 N.Y.S.2d 103;  People v. Gelzer, 224 A.D.2d 443, 637 N.Y.S.2d 764).

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 of assault in the second degree beyond a reasonable doubt (see Penal Law §§ 120.05[1], 10.00 [10];  People v. Crawford, 200 A.D.2d 683, 684, 607 N.Y.S.2d 48;  Matter of Patrick W., 166 A.D.2d 652, 653, 561 N.Y.S.2d 78).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 85-86, 455 N.Y.S.2d 675).

The defendant's remaining contentions are without merit.