PEOPLE v. WARREN (2008)

Appeal by the defendant from a judgment of the Supreme Court, Westchester County (West, J.), rendered March 9, 2001, convicting him of murder in the second degree and attempted robbery in the first degree (two counts), 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 testimony.

ORDERED that the judgment is affirmed.

 The defendant's argument that the lineup procedure was unduly suggestive is unpreserved for appellate review because he failed, at the Wade hearing (see United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149), to raise the specific grounds upon which he now challenges the procedure (see People v. Washington, 40 A.D.3d 1136, 1137, 837 N.Y.S.2d 272;  People v. Mack, 13 A.D.3d 653, 786 N.Y.S.2d 354;  People v. Villacreses, 12 A.D.3d 624, 625, 785 N.Y.S.2d 103;  People v. Saunders, 306 A.D.2d 502, 761 N.Y.S.2d 315;  People v. Velez, 222 A.D.2d 625, 635 N.Y.S.2d 665).   In any event, there is no basis for the defendant's contention that the Assistant District Attorney's question to the witness, which recited the time and place of the incident, implied that one of the participants in the lineup “was in fact present at that time and place.”   Even if such an implication was communicated, an identification is not “automatically contaminated” by a remark that a suspect is in custody or that a suspect will appear in the lineup (People v. Rodriguez, 64 N.Y.2d 738, 740-741, 485 N.Y.S.2d 976, 475 N.E.2d 443;  see People v. Ashby, 289 A.D.2d 588, 735 N.Y.S.2d 715;  People v. Martinez, 151 A.D.2d 786, 787, 543 N.Y.S.2d 116;  People v. Smith, 140 A.D.2d 647, 528 N.Y.S.2d 872;  People v. Wiredo, 138 A.D.2d 652, 653, 526 N.Y.S.2d 235).   Under the totality of the circumstances of this case, the lineup procedure was not unduly suggestive (see People v. Bier, 16 A.D.3d 698, 794 N.Y.S.2d 61;  People v. Ashby, 289 A.D.2d 588, 735 N.Y.S.2d 715;  People v. Martinez, 151 A.D.2d at 787, 543 N.Y.S.2d 116;  People v. Smith, 140 A.D.2d 647, 528 N.Y.S.2d 872;  People v. Wiredo, 138 A.D.2d at 653, 526 N.Y.S.2d 235).

 The defendant's contention that the prosecution failed to adduce legally sufficient evidence of his identity as the perpetrator of the crime is unpreserved for appellate review (see CPL 470.05[2];  People v. Carter, 44 A.D.3d 677, 679, 843 N.Y.S.2d 381;  People v. James, 35 A.D.3d 762, 825 N.Y.S.2d 776;  People v. Dieppa, 285 A.D.2d 558, 727 N.Y.S.2d 898;  People v. White, 192 A.D.2d 736, 597 N.Y.S.2d 117).   In any event, the contention is without merit.   The eyewitness had an unobstructed view of the perpetrators, during the day, from across the street, and twice made eye contact with them as they were leaving the scene.   The eyewitness picked the defendant's photograph from a photographic array and later identified him in a lineup.   Although the eyewitness was initially equivocal during the lineup procedure, he ultimately identified the defendant with certainty.   The identification evidence was corroborated by the testimony of a witness whom the defendant had tried to recruit to participate in the robbery prior to the incident and to whom the defendant later admitted having shot the victim.   Moreover, the defendant admitted to later possessing the gun used in the incident.  “Viewing th[is] evidence in a light most favorable to the People, a ‘valid line of reasoning and permissible inferences could lead a rational person to the conclusion reached by the fact finder’ ” (People v. Williams, 84 N.Y.2d 925, 926, 620 N.Y.S.2d 811, 644 N.E.2d 1367;  see People v. Lambert, 272 A.D.2d 413, 414, 709 N.Y.S.2d 189;  People v. Neale, 245 A.D.2d 392, 666 N.Y.S.2d 448;  People v. Gilliam, 232 A.D.2d 654, 648 N.Y.S.2d 994;  People v. Mercado, 134 A.D.2d 292, 520 N.Y.S.2d 617;  People v. Caban, 120 A.D.2d 603, 502 N.Y.S.2d 78).   Moreover, upon the exercise of our factual review power (see CPL 470.15[5] ), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902;  People v. Hoffman, 2 A.D.3d 749, 768 N.Y.S.2d 651;  People v. Young, 296 A.D.2d 588, 592-593, 746 N.Y.S.2d 195;  People v. Lambert, 272 A.D.2d 413, 414, 709 N.Y.S.2d 189;  People v. Gilliam, 232 A.D.2d at 654, 648 N.Y.S.2d 994;  People v. White, 192 A.D.2d at 737, 597 N.Y.S.2d 117;  People v. Carr, 220 A.D.2d 521, 522, 632 N.Y.S.2d 483).

 The court's imposition of the maximum allowable sentence was not an improvident exercise of discretion, despite the fact that the codefendant received a lesser sentence, given the evidence tending to establish that the defendant was the shooter and the defendant's extensive, violent criminal history (see People v. Goolsby, 213 A.D.2d 722, 723, 624 N.Y.S.2d 955;  People v. Powers, 173 A.D.2d 886, 890, 570 N.Y.S.2d 362;  People v. Merchant, 171 A.D.2d 887, 888, 567 N.Y.S.2d 812;  People v. Brown, 136 A.D.2d 1, 17, 525 N.Y.S.2d 618, cert. denied 488 U.S. 897, 109 S.Ct. 240, 102 L.Ed.2d 229;  see generally People v. Suitte, 90 A.D.2d 80, 83, 455 N.Y.S.2d 675).