PEOPLE v. KILLIMAYER

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

The PEOPLE, etc., respondent, v. Joseph KILLIMAYER, appellant.

Decided: May 29, 2007

ROBERT A. SPOLZINO, J.P., ANITA R. FLORIO, PETER B. SKELOS, and WILLIAM E. McCARTHY, JJ. Carol Kahn, New York, N.Y., for appellant. William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Dutchess County (Hayes, J.), rendered August 4, 2005, convicting him of robbery in the first degree and robbery 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.

 The defendant's argument that the photographic array was rendered unduly suggestive by the presence of height markers behind some of the stand-ins is unpreserved for appellate review (see generally People v. Gray, 86 N.Y.2d 10, 18, 629 N.Y.S.2d 173, 652 N.E.2d 919).   In any event, the test for determining whether a pretrial identification was so unfair as to be violative of due process is whether “ ‘the confrontation ․ was so unnecessarily suggestive and conducive to irreparable mistaken identification that [defendant] was denied due process of law’ ” (People v. Logan, 25 N.Y.2d 184, 187, 303 N.Y.S.2d 353, 250 N.E.2d 454, cert. denied 396 U.S. 1020, 90 S.Ct. 592, 24 L.Ed.2d 513, quoting Stovall v. Denno, 388 U.S. 293, 301-302, 87 S.Ct. 1967, 18 L.Ed.2d 1199).   In the case of a photo array, “[t]he general rule is that [it] is deemed to be suggestive when some characteristic of one picture draws the viewer's attention to that picture, indicating that the police have made a particular selection” (People v. Mack, 243 A.D.2d 731, 665 N.Y.S.2d 529).   Here, contrary to the defendant's contention, there was nothing in his photograph to indicate that he was shorter than the other participants in the array (see People v. Robert, 184 A.D.2d 597, 598, 585 N.Y.S.2d 445;  People v. Jackson, 151 A.D.2d 694, 542 N.Y.S.2d 749).

 The defendant's challenge to the legal sufficiency of the evidence is unpreserved for appellate review (see CPL 470.05[2];  People v. Finger, 95 N.Y.2d 894, 895, 716 N.Y.S.2d 34, 739 N.E.2d 290;  People v. Gray, 86 N.Y.2d 10, 20, 629 N.Y.S.2d 173, 652 N.E.2d 919;  People v. Bynum, 70 N.Y.2d 858, 859, 523 N.Y.S.2d 492, 518 N.E.2d 4).   In any event, 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 (see People v. Schulz, 4 N.Y.3d 521, 529, 797 N.Y.S.2d 24, 829 N.E.2d 1192).   Moreover, resolution of issues of credibility is primarily a matter to be determined by the jury, which saw and heard the witnesses, and its determination should be accorded great deference on appeal (see People v. Romero, 7 N.Y.3d 633, 644-645, 826 N.Y.S.2d 163, 859 N.E.2d 902;  People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053, cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828).   Upon the exercise of our factual review power (see CPL 470.15[5] ), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, supra ).

The defendant's remaining contention has been withdrawn by letter dated July 17, 2006.

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