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

The PEOPLE of the State of New York, Respondent, v. Orlando BRAVO, Defendant-Appellant.

Decided: June 18, 2002

TOM, J.P., BUCKLEY, ELLERIN, WALLACH and GONZALEZ, JJ. Peter D. Coddington, for Respondent. Lisa Joy Robertson, for Defendant-Appellant.

Judgment, Supreme Court, Bronx County (Patricia Williams, J.), rendered March 17, 2000, convicting defendant, after a nonjury trial, of robbery in the first degree, burglary in the first degree (two counts), criminal use of a firearm in the first degree, robbery in the second degree (two counts) and grand larceny in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 15 years, 15 years, 15 years, 15 years, 10 years, 10 years and 2 to 4 years, respectively, unanimously modified, as a matter of discretion in the interest of justice, to the extent of vacating the conviction of criminal use of a firearm in the first degree and dismissing that count of the indictment, and otherwise affirmed.

 Defendant's motion to suppress a lineup identification was properly denied.   The record establishes that any physical disparities between defendant and the other lineup participants were minimal and did not draw undue attention to defendant (see, People v. Chipp, 75 N.Y.2d 327, 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).   Since a photograph of the lineup was reviewed by the hearing court, which made detailed findings concerning the composition of the lineup and the characteristics of the participants, the loss of the photograph does not create a presumption of suggestiveness (see, People v. Colon, 283 A.D.2d 308, 724 N.Y.S.2d 844, lv. denied 96 N.Y.2d 900, 730 N.Y.S.2d 797, 756 N.E.2d 85).

 The verdict was based on legally sufficient evidence and was not against the weight of the evidence.   The element of physical injury was established by testimony that defendant punched the victim in the face on several occasions causing bruises to her face and head, bloodied lips and recurring headaches (see, People v. Guidice, 83 N.Y.2d 630, 636, 612 N.Y.S.2d 350, 634 N.E.2d 951;  People v. McClennon, 287 A.D.2d 310, 731 N.Y.S.2d 365, lv. denied 97 N.Y.2d 685, 738 N.Y.S.2d 300, 764 N.E.2d 404).   The victim's testimony properly established the value of the stolen jewelry under the particular circumstances (see, People v. Womble, 111 A.D.2d 283, 489 N.Y.S.2d 521), in that she testified that more than 100 pieces were taken, including her engagement ring that alone cost $2,500, and that the total estimate of $8000 was far in excess of the statutory threshold of $3000.

 Since defendant's conviction of robbery in the first degree, and of burglary in the first degree pursuant to Penal Law § 140.30(4) were based upon the fact that defendant was armed with a firearm, and since possession of that same firearm supported defendant's conviction of criminal use of a firearm in the first degree, the criminal use count should be dismissed (People v. Brown, 67 N.Y.2d 555, 560-561, 505 N.Y.S.2d 574, 496 N.E.2d 663, cert. denied 479 U.S. 1093, 107 S.Ct. 1307, 94 L.Ed.2d 161).   This is not a situation where application of Brown would frustrate a statutory provision requiring an enhanced sentence (compare, People v. Rhodes, 281 A.D.2d 225, 723 N.Y.S.2d 2, lv. denied 96 N.Y.2d 906, 730 N.Y.S.2d 804, 756 N.E.2d 92).

We perceive no basis for a reduction of sentence.

We have considered and rejected defendant's remaining claims.