PEOPLE v. CUSIMANO (2008)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Rotker, J.), rendered March 25, 2005, convicting him of robbery in the third degree, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing (Grosso, J.), of that branch of the defendant's omnibus motion which was to suppress lineup identification evidence.

ORDERED that the judgment is affirmed.

The hearing court properly denied that branch of the defendant's omnibus motion which was to suppress lineup identification evidence (see People v. Chipp, 75 N.Y.2d 327, 335, 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;  People v. Arroyo, 38 A.D.3d 792, 793, 832 N.Y.S.2d 278).   Contrary to the defendant's contention, he was not the only one in the lineup wearing a black T-shirt.   Moreover, the defendant's clothing did not figure prominently in the complainant's description of him, and there was no testimony adduced at the Wade hearing (see United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149) that the complainant relied on clothing in identifying the defendant in the lineup (see People v. Tinnen, 238 A.D.2d 615, 616, 657 N.Y.S.2d 73).

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 of robbery in the third degree beyond a reasonable doubt (see People v. Andolina, 23 A.D.3d 573, 805 N.Y.S.2d 399;  People v. Cannon, 1 A.D.3d 606, 767 N.Y.S.2d 652;  People v. Brown, 309 A.D.2d 871, 766 N.Y.S.2d 51).