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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Lemmio TURMAN, Defendant-Appellant.

Decided: September 29, 2000

PRESENT:  GREEN, J.P., PINE, HURLBUTT, KEHOE and LAWTON, JJ. Roland Hayes, Buffalo, for Defendant-Appellant. Donna A. Milling, Buffalo, for Plaintiff-Respondent.

 On appeal from a judgment convicting him of rape in the first degree (Penal Law § 130.35[1] ) and sodomy in the first degree (Penal Law § 130.50[1] ), defendant contends that the identification testimony of the complainant should have been suppressed because it was based upon a suggestive pretrial identification procedure.   Defendant contends that the photo array was unduly suggestive because he was the only one shown with neck scarring and the complainant had described her assailant as having scars on the neck.   The photographs in the array are not so dissimilar as to render the photo array unduly suggestive (see, People v. Lee, 207 A.D.2d 953, 617 N.Y.S.2d 81, lv. denied 85 N.Y.2d 864, 624 N.Y.S.2d 383, 648 N.E.2d 803).   Moreover, the complainant testified she did not notice the neck scarring in the photograph when she identified defendant as her assailant.   Even assuming, arguendo, that the array was unduly suggestive, we would nevertheless conclude that there was an independent basis for the in-court identification (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).   We further conclude that defendant received effective assistance of counsel (see, People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).   Finally, the sentence is neither unduly harsh nor severe.

Judgment unanimously affirmed.


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