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

The PEOPLE of the State of New York, Respondent, v. Sean ROBERSON, Defendant-Appellant.

Decided: November 26, 2002

NARDELLI, J.P., TOM, LERNER, MARLOW, and GONZALEZ, JJ. Lynetta M. St. Clair, for Respondent. Elizabeth Sack Felber, for Defendant-Appellant.

Judgment, Supreme Court, Bronx County (Harold Silverman, J.), rendered January 13, 2000, convicting defendant, after a jury trial, of robbery in the second degree, and sentencing him to a term of 2 1/414 to 4 1/212 years, unanimously affirmed.

Defendant's suppression motion was properly denied.   The police had probable cause to arrest defendant because the victim supplied a photograph of defendant to the officer, identified him as one of the robbers, explained his role in the incident and subsequently selected his picture from a photo array (see People v. Lebron, 238 A.D.2d 150, 656 N.Y.S.2d 201, lv. denied 90 N.Y.2d 895, 662 N.Y.S.2d 438, 685 N.E.2d 219, cert. denied 522 U.S. 1032, 118 S.Ct. 635, 139 L.Ed.2d 614).   While the police were also in possession of some exculpatory evidence, including an allegedly inconsistent statement by the victim and an assertion by an eyewitness, who was defendant's former girlfriend, that defendant was not one of the perpetrators, this type of equivocation in these circumstances was not so substantial as to undermine probable cause, which clearly does not require proof beyond a reasonable doubt (see Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879;  People v. Bigelow, 66 N.Y.2d 417, 423, 497 N.Y.S.2d 630, 488 N.E.2d 451).  “In any investigation the police are likely to encounter discrepancies, particularly in cases involving eyewitness identification.   These matters may impair their ability to prove guilt beyond a reasonable doubt at trial, but they generally have little bearing at preliminary stages where the only relevant concern is whether there is sufficient evidence to show probable cause to believe the defendant committed the crime.”  (Gisondi v. Town of Harrison, 72 N.Y.2d 280, 285, 532 N.Y.S.2d 234, 528 N.E.2d 157).   Similarly, the court properly exercised its discretion in limiting defendant's exploration of the allegedly exculpatory information at the hearing (cf.   Delaware v. Van Arsdall, 475 U.S. 673, 678-679, 106 S.Ct. 1431, 89 L.Ed.2d 674).

The verdict was based on legally sufficient evidence and was not against the weight of the evidence.   Issues of identification and credibility were properly considered by the jury and there is no basis for disturbing its determinations (see People v. Gaimari, 176 N.Y. 84, 94, 68 N.E. 112).

Defendant's remaining claims are substantially similar to claims rejected by this Court on the codefendant's appeal (People v. Johnson, 287 A.D.2d 274, 730 N.Y.S.2d 858, lv. denied 97 N.Y.2d 705, 739 N.Y.S.2d 106, 765 N.E.2d 309), and there is no basis for reaching a different result herein.