PEOPLE v. COTTERELL

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

The PEOPLE, etc., Respondent, v. Phillip COTTERELL, Appellant.

Decided: June 29, 1998

Before ROSENBLATT, J.P., and O'BRIEN, RITTER and KRAUSMAN, JJ. Robert J. Boyle, New York City, for appellant. Charles J. Hynes, District Attorney, Brooklyn (Roseann B. MacKechnie and Ann Bordley, of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (George, J.), rendered March 2, 1995, convicting him of murder in the second degree, assault in the first degree, reckless endangerment in the first degree, and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress identification testimony.

ORDERED that the judgment is affirmed.

 A photographic display is suggestive where some characteristics of one picture draw the viewer's attention to the subject of that picture, indicating that the police have made a particular selection (see, People v. Cherry, 150 A.D.2d 475, 541 N.Y.S.2d 78).   The six-picture array employed in this case was not suggestive.   All of the participants, including the defendant, were close in age, and had similar hairstyles, skin tones, and facial characteristics (see, People v. Robert, 184 A.D.2d 597, 598, 585 N.Y.S.2d 445).   Additionally, there is no merit to the defendant's contention that the lineup in which he was identified was impermissibly suggestive because he was the youngest participant (see, People v. Pinckney, 220 A.D.2d 539, 632 N.Y.S.2d 203;  People v. Garcia, 215 A.D.2d 584, 585, 626 N.Y.S.2d 838).

Viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.   Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15[5] ).

The sentence imposed was not excessive (see, People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

The defendant's remaining contentions are either unpreserved for appellate review or without merit.

MEMORANDUM BY THE COURT.

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