PEOPLE v. TAYLOR

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

The PEOPLE of the State of New York, Respondent, v. Dante TAYLOR, Defendant-Appellant.

Decided: September 28, 2007

PRESENT:  GORSKI, J.P., SMITH, CENTRA, FAHEY, AND GREEN, JJ. Edward J. Nowak, Public Defender, Rochester (Drew R. DuBrin of Counsel), for Defendant-Appellant. Michael C. Green, District Attorney, Rochester (Nancy A. Gilligan of Counsel), for Respondent.

 Defendant appeals from a judgment convicting him, upon his plea of guilty, of attempted robbery in the first degree (Penal Law §§ 110.00, 160.15[4] ).   We agree with defendant that his waiver of the right to appeal does not “reflect[ ] a knowing and voluntary choice” (People v. Callahan, 80 N.Y.2d 273, 280, 590 N.Y.S.2d 46, 604 N.E.2d 108), and thus the waiver does not encompass defendant's contention that the identification procedures employed by the police were unduly suggestive.   Nevertheless, we reject that contention.   The initial photo array viewed by the victim did not include defendant's photograph, and the victim indicated that the individual in photograph number three “looked a lot like” the individual who had robbed him at gunpoint.   Two weeks later, however, the police showed the victim another photo array in which defendant was the individual depicted in photograph number three, at which time the victim identified defendant as the perpetrator.   The victim thereafter identified defendant as the perpetrator in a corporeal lineup in which defendant was standing in position number five.   Contrary to defendant's contention, “[t]he police did not engage in an impermissibly suggestive procedure when they showed a second array to the victim” (People v. Zacharek, 170 A.D.2d 1008, 566 N.Y.S.2d 162, lv. denied 77 N.Y.2d 969, 570 N.Y.S.2d 502, 573 N.E.2d 590).   The record does not support defendant's contention that the second photo array was conducted in an attempt to draw attention to defendant's photograph or to indicate that the police were urging the victim to make a particular selection (see People v. Martinez, 298 A.D.2d 897, 897-898, 749 N.Y.S.2d 118, lv. denied 98 N.Y.2d 769, 752 N.Y.S.2d 10, 781 N.E.2d 922, cert. denied 538 U.S. 963, 123 S.Ct. 1752, 155 L.Ed.2d 515, reh. denied 539 U.S. 911, 123 S.Ct. 2266, 156 L.Ed.2d 126;  see generally People v. Chipp, 75 N.Y.2d 327, 335-336, 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).   We also reject defendant's contention that County Court erred in failing to conduct a sequential lineup.   A corporeal lineup “ generally provide[s] a reliable pretrial identification procedure” (Chipp, 75 N.Y.2d at 335, 553 N.Y.S.2d 72, 552 N.E.2d 608;  see also People v. Hammonds, 1 Misc.3d 880, 882-883, 768 N.Y.S.2d 166).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: