PEOPLE v. WAGER

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

The PEOPLE of the State of New York, Respondent, v. Anthony WAGER, Defendant-Appellant.

Decided: June 23, 2005

BUCKLEY, P.J., TOM, ANDRIAS, SULLIVAN, SWEENY, JJ. Steven N. Feinman, White Plains, for appellant. Robert M. Morgenthau, District Attorney, New York (Sheryl Feldman of counsel), for respondent.

Judgment, Supreme Court, New York County (Leslie Crocker Snyder, J.), rendered July 18, 2003, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to a term of 25 years to life, unanimously affirmed.

 By proceeding with a suppression hearing after his motion to preclude identification testimony for lack of CPL 710.30(1)(b) notice was denied, defendant waived the preclusion issue (People v. Kirkland, 89 N.Y.2d 903, 653 N.Y.S.2d 256, 675 N.E.2d 1208 [1996];  People v. Torres, 2 A.D.3d 367, 768 N.Y.S.2d 823 [2003], lv. denied 2 N.Y.3d 765, 778 N.Y.S.2d 784, 811 N.E.2d 46 [2004] ).   The court properly denied defendant's suppression motion.   The investigator's sequential display of a group of photographs including defendant's was not unduly suggestive, even though, years earlier, the witness had selected the same photograph of defendant from another photo array (see People v. Chipp, 75 N.Y.2d 327, 336, 553 N.Y.S.2d 72, 552 N.E.2d 608 [1990], cert. denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70 [1990];  People v. Galletti, 239 A.D.2d 598, 599, 658 N.Y.S.2d 80 [1997], lv. denied 90 N.Y.2d 1011, 666 N.Y.S.2d 106, 688 N.E.2d 1389 [1997] ).

The court's conduct did not deprive defendant of a fair trial, since the court did not take on “either the function or appearance of an advocate” (People v. Arnold, 98 N.Y.2d 63, 67, 745 N.Y.S.2d 782, 772 N.E.2d 1140 [2002] ), or suggest to the jury that it had an opinion on the merits of the case. The conduct of which defendant complains on appeal consisted of the court's limited questioning of witnesses for the purpose of clarification (see People v. Moulton, 43 N.Y.2d 944, 403 N.Y.S.2d 892, 374 N.E.2d 1243 [1978] ), as well as its admonitions to defense counsel that occurred outside the hearing of the jury and did not cause any prejudice to defendant.

We perceive no basis for reducing the sentence.

We have considered defendant's remaining contentions and find them unavailing.