THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. CARL NICHOLS DEFENDANT APPELLANT

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

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. CARL NICHOLS, DEFENDANT–APPELLANT.

KA 09–00768

Decided: November 18, 2011

PRESENT:  SMITH, J.P., CARNI, LINDLEY, SCONIERS, AND MARTOCHE, JJ. WYOMING COUNTY–ATTICA LEGAL AID BUREAU, INC., LIVINGSTON COUNTY CONFLICT DEFENDER, WARSAW (NORMAN P. EFFMAN OF COUNSEL), FOR DEFENDANT–APPELLANT. THOMAS E. MORAN, DISTRICT ATTORNEY, GENESEO (ERIC R. SCHIENER OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

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

Memorandum:  Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, grand larceny in the third degree (Penal Law former § 155.35) and criminal possession of stolen property in the third degree (§ 165.50).   We reject defendant's contention that County Court erred in refusing to suppress an in-court identification of defendant based on an unduly suggestive photo array identification procedure.   The People met their burden of establishing the reasonableness of the police conduct in conducting the identification procedure in question, and defendant failed to meet his burden of proving that the procedure was unduly suggestive (see People v. Chipp, 75 N.Y.2d 327, 335, cert denied 498 U.S. 833).

Defendant failed to renew his motion for a trial order of dismissal after presenting evidence, and thus he failed to preserve for our review his contention that the conviction is not supported by legally sufficient evidence (see People v. Hines, 97 N.Y.2d 56, 61, rearg. denied 97 N.Y.2d 678;  People v. Pearson, 26 AD3d 783, lv denied 6 NY3d 851).   In any event, that contention is without merit (see generally People v. Bleakley, 69 N.Y.2d 490, 495).

Patricia L. Morgan

Clerk of the Court