PEOPLE v. RODRIGUEZ

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

The PEOPLE of the State of New York, Respondent, v. Jonathan RODRIGUEZ, Defendant-Appellant.

Decided: June 24, 2008

LIPPMAN, P.J., TOM, GONZALEZ, BUCKLEY, CATTERSON, JJ. Robert S. Dean, Center for Appellate Litigation, New York (William A. Loeb of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Eleanor J. Ostrow of counsel), for respondent.

Judgment, Supreme Court, New York County (Charles J. Tejada, J. at hearing;  Carol Berkman, J. at trials and sentence), rendered June 2, 2005, convicting defendant, after two jury trials, of manslaughter in the first degree and assault in the second degree, and sentencing him to concurrent terms of 25 years and 7 years, respectively, unanimously affirmed.

 The court properly denied defendant's motion to suppress identification testimony.   The lineup photographs demonstrate the lineup was not suggestive (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] ).   Defendant did not stand out as significantly younger than the other lineup participants.   The disparity between the actual ages of a defendant and other lineup participants has little relevance unless such disparity is reflected in their physical appearances (see People v. Grant, 43 A.D.3d 800, 801, 843 N.Y.S.2d 214 [2007], lv. denied 9 N.Y.3d 990, 848 N.Y.S.2d 608, 878 N.E.2d 1024 [2007];  People v. Amuso, 39 A.D.3d 425, 835 N.Y.S.2d 114 [2007], lv. denied 9 N.Y.3d 862, 840 N.Y.S.2d 892, 872 N.E.2d 1198 [2007] ).

 Defendant failed to preserve his claim that the court at his second trial erred in instructing the jury that it should not consider self-defense or justification, and we decline to review it in the interest of justice.   As an alternative holding, we also reject it on the merits.   The court reasonably anticipated that although defendant did not raise a justification defense, there was some evidence in the case that might lead the jury to speculate about such a defense.   Accordingly, the court properly exercised its discretion in directing the jury not to consider that issue (cf. People v. Medor, 39 A.D.3d 362, 833 N.Y.S.2d 100 [2007], lv. denied 9 N.Y.3d 867, 840 N.Y.S.2d 897, 872 N.E.2d 1203 [2007] ), and this instruction could not have undermined defendant's misidentification defense or caused him any prejudice.

We perceive no basis for reducing the sentence.