PEOPLE v. FRANKLIN (2026)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Miriam Cyrulnik, J.), rendered October 24, 2018, convicting him of robbery in the first degree (three counts), upon a jury verdict, and imposing sentence.  The appeal brings up for review the denial, after a hearing, of those branches of the defendant's omnibus motion which were to suppress certain identification testimony.

ORDERED that the judgment is affirmed.

The defendant was charged with, inter alia, three counts of robbery in the first degree in connection with separate incidents in which two complainants were robbed at gunpoint while making food deliveries.  Both of the complainants identified the defendant as the perpetrator prior to trial.

The Supreme Court properly denied, after a hearing, those branches of the defendant's omnibus motion which were to suppress the evidence of the complainants' respective pretrial identifications of the defendant in photographs on the ground that those pretrial identification procedures were unduly suggestive (see People v. Rodriguez, 79 N.Y.2d 445, 451, 583 N.Y.S.2d 814, 593 N.E.2d 268).  Contrary to the defendant's contention, the first complainant was sufficiently familiar with the defendant prior to the robberies such that the complainant was impervious to suggestiveness, and the complainant's pretrial identification of the defendant from two photographs was merely confirmatory (see People v. Conry, 230 A.D.3d 596, 597, 216 N.Y.S.3d 686;  People v. Fields, 212 A.D.3d 648, 649, 181 N.Y.S.3d 335).  With regard to the second complainant, the photographic array from which this complainant identified the defendant was not unduly suggestive, as the physical characteristics of the individuals depicted were sufficiently similar and “the composition of the defendant's photograph was not so dissimilar to the other photographs as to ‘create a substantial likelihood that the defendant would be singled out for identification’ ” (People v. Blount, 176 A.D.3d 1092, 1093, 112 N.Y.S.3d 155 [internal quotation marks omitted], quoting People v. Johnson, 165 A.D.3d 1168, 1170, 85 N.Y.S.3d 585;  see People v. Thomas, 164 A.D.3d 619, 621, 82 N.Y.S.3d 82).

The defendant's challenge to the legal sufficiency of the evidence is unpreserved for appellate review (see CPL 470.05[2];  People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946).  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, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1;  People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).  Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d at 349, 849 N.Y.S.2d 480, 880 N.E.2d 1).

The defendant's remaining contentions, including those raised in his pro se supplemental brief, are unpreserved for appellate review and, in any event, without merit.

DILLON, J.P., BRATHWAITE NELSON, DOWLING and QUIRK, JJ., concur.