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Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., Respondent, v. Robert SAWYER, Appellant.

Decided: August 17, 1998

Before MILLER, J.P., and ALTMAN, McGINITY and LUCIANO, JJ. Joseph F. DeFelice, Kew Gardens, N.Y., for appellant. Denis Dillon, District Attorney, Mineola, N.Y. (Karen Wigle Weiss and Cara Brady of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Nassau County (Cotter, J.), rendered October 18, 1996, convicting him of burglary in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, the photographic array from which the complainant identified the defendant was not unduly suggestive (see, People v. Chipp, 75 N.Y.2d 327, 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;  see also, People v. Jackson, 211 A.D.2d 644, 620 N.Y.S.2d 486).   Although the photograph of the defendant was the most clearly focused of the six photographs which comprised the photographic array, there was nothing distinctive about the depiction of the defendant himself that rendered the array unduly suggestive (see, People v. Robert, 184 A.D.2d 597, 585 N.Y.S.2d 445;  see also, People v. Tedesco, 143 A.D.2d 155, 531 N.Y.S.2d 609), since each of the men depicted had similar facial characteristics and facial hair.

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

The defendant's remaining contention is unpreserved for appellate review (see, CPL 470.05[2];  People v. Hoke, 62 N.Y.2d 1022, 479 N.Y.S.2d 495, 468 N.E.2d 677).


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