PEOPLE v. HANNIFORD (2023)

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Dutchess County (Jessica Z. Segal, J.), rendered September 7, 2021, convicting him of criminal sale of a controlled substance in the third degree, upon his plea of guilty, 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 certain identification evidence.

ORDERED that the judgment is affirmed.

The defendant's contention that a photographic array was unduly suggestive is without merit.  Participants in a photo array should be sufficiently similar in appearance to the defendant such that there is little likelihood that the defendant would be singled out for identification based on particular characteristics (see People v. Bell, 188 A.D.3d 904, 905, 135 N.Y.S.3d 413).  However, “[t]here is no requirement that the other participants in a ․ photo array be identical in appearance to the defendant” (id. at 905, 135 N.Y.S.3d 413).  Here, the witness selected the defendant's photograph from an array containing photographs of six individuals with similar characteristics, and none of the defendant's physical features depicted therein were so unusual as to single him out for identification (see People v. Frederick, 211 A.D.3d 1034, 1036, 180 N.Y.S.3d 604;  People v. Tannen, 182 A.D.3d 482, 483, 122 N.Y.S.3d 610;  People v. Brown, 89 A.D.3d 1032, 1033, 933 N.Y.S.2d 339;  People v. Ortiz, 61 A.D.3d 1003, 1003, 880 N.Y.S.2d 77;  People v. Stewart, 51 A.D.3d 826, 827, 859 N.Y.S.2d 663;  see also People v. Manners, 217 A.D.3d 683, 684, 191 N.Y.S.3d 90;  People v. Powell, 26 A.D.3d 795, 810 N.Y.S.2d 266).  Moreover, since the defendant failed to meet his burden of establishing that the photo array was unduly suggestive, it was not necessary for the People to establish that the witness had an independent basis to make an identification (see People v. Traylor, 69 A.D.3d 659, 892 N.Y.S.2d 179;  People v. Galarza, 206 A.D.2d 387, 614 N.Y.S.2d 433).

BARROS, J.P., CONNOLLY, MILLER and WOOTEN, JJ., concur.