PEOPLE v. JEAN BAPTISTE (2008)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Del Giudice, J.), rendered September 21, 2006, convicting him of robbery in the first degree and robbery in the second degree, 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 challenge to the legal sufficiency of the evidence supporting his convictions of robbery in the first degree and robbery in the second degree is unpreserved for appellate review (see CPL 470.05[2];  People v. Finger, 95 N.Y.2d 894, 895, 716 N.Y.S.2d 34, 739 N.E.2d 290;  People v. Gray, 86 N.Y.2d 10, 19-21, 629 N.Y.S.2d 173, 652 N.E.2d 919).   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.   In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5];  People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053, cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828;  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. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

 The hearing court properly declined to suppress lineup identification evidence (see 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).  “While the fillers used in a lineup must be sufficiently similar to the defendant so that no characteristic or visual clue would orient the viewer toward the defendant as a perpetrator of the crimes charged (see People v. Lundquist, 151 A.D.2d 505, 506, 542 N.Y.S.2d 295), there is no requirement that a defendant in a lineup be accompanied by individuals nearly identical in appearance” (People v. Cintron, 226 A.D.2d 390, 390-391, 640 N.Y.S.2d 242).   The fact that the defendant was the only one in the lineup wearing a blue striped shirt was not so unduly suggestive of his identity as to create a substantial likelihood of irreparable misidentification because there is no evidence that his clothing figured prominently in the witness' description of the perpetrator (see People v. Jordan, 44 A.D.3d 875, 876, 843 N.Y.S.2d 450;  People v. Torres, 309 A.D.2d 823, 824, 765 N.Y.S.2d 650). Moreover, the defendant's physical characteristics were sufficiently similar to the other participants in the lineup as to negate any likelihood that the defendant 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;  People v. Arroyo, 38 A.D.3d 792, 793, 832 N.Y.S.2d 278;  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).

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