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

The PEOPLE, etc., respondent, v. Andrew SMART, appellant.

Decided: August 03, 2016

WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, SHERI S. ROMAN, and JOSEPH J. MALTESE, JJ. Lynn W.L. Fahey, New York, N.Y. (David P. Greenberg of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Jill Oziemblewski of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Chun, J.), rendered November 7, 2012, convicting him of murder in the first degree (two counts), attempted murder in the second degree, and criminal possession of a weapon in the second degree (two counts), 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.

 We reject the defendant's contention that he was deprived of the right to counsel by the trial court's denial of his motion for the substitution of new counsel, since the defendant failed to make the requisite specific factual allegations of “ ‘serious complaints about counsel’ ” (People v. Porto, 16 N.Y.3d 93, 100, 917 N.Y.S.2d 74, 942 N.E.2d 283, quoting People v. Medina, 44 N.Y.2d 199, 207, 404 N.Y.S.2d 588, 375 N.E.2d 768;  see People v. Ward, 121 A.D.3d 1026, 1027, 994 N.Y.S.2d 675).  In any event, the trial court made a sufficient inquiry into the defendant's criticisms of assigned counsel, and thereupon provided a satisfactory solution to address his concerns (see People v. Ward, 121 A.D.3d at 1027, 994 N.Y.S.2d 675;  People v. Hortiz, 60 A.D.3d 692, 693, 874 N.Y.S.2d 554).

 Contrary to the defendant's contention, the hearing court properly denied that branch of his omnibus motion which was to suppress lineup identification evidence (see People v. Jackson, 98 N.Y.2d 555, 558, 750 N.Y.S.2d 561, 780 N.E.2d 162;  People v. Chipp, 75 N.Y.2d 327, 335, 553 N.Y.S.2d 72, 552 N.E.2d 608).  A review of the photograph that was taken at the lineup reveals that the lineup fillers possessed physical characteristics which were reasonably similar to those of the defendant, and that the police took reasonable steps to conceal any differences between the appearances of the lineup fillers and the defendant (see People v. Chipp, 75 N.Y.2d at 335, 553 N.Y.S.2d 72, 552 N.E.2d 608;  People v. Reaves, 112 A.D.3d 746, 747, 976 N.Y.S.2d 228;  People v. Villacreses, 12 A.D.3d 624, 625, 785 N.Y.S.2d 103;  People v. Walker, 215 A.D.2d 606, 606, 626 N.Y.S.2d 843;  People v. Moore, 193 A.D.2d 627, 627, 597 N.Y.S.2d 444).  The defendant's contention that he was singled out by virtue of a tattoo on his neck and the color of his shirt is without merit, as there was no evidence adduced at the Wade hearing (United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149) which indicated that the witnesses relied on those features in making an identification (see People v. Spence, 92 A.D.3d 905, 938 N.Y.S.2d 622;  People v. Jean–Baptiste, 57 A.D.3d 566, 567, 868 N.Y.S.2d 724;  People v. Saunders, 306 A.D.2d 502, 502, 761 N.Y.S.2d 315;  People v. Tinnen, 238 A.D.2d 615, 616, 657 N.Y.S.2d 73).  Furthermore, the defendant's contention regarding the age of the lineup fillers lacks merit (see People v. Mattocks, 133 A.D.2d 89, 90, 518 N.Y.S.2d 436).

Viewing the evidence in the light most favorable to the prosecution, we find that the evidence was legally sufficient to prove the defendant's guilt beyond a reasonable doubt (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932).  Moreover, upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

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

I cannot subscribe to the majority's view that the lineup identification evidence in this case was not unduly suggestive.  As the evidence of the defendant's guilt was far from overwhelming, and hinged essentially on the identification testimony (see People v. Gethers, 86 N.Y.2d 159, 163, 630 N.Y.S.2d 281, 654 N.E.2d 102), I would reverse and order a new trial, to be preceded by an independent source hearing (see People v. Pride, 129 A.D.3d 869, 870, 11 N.Y.S.3d 634).

Although defense counsel may have failed specifically to point out, during the Wade hearing (United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149), the apparent difference in age between the defendant and the fillers, the issue is nonetheless preserved for appellate review because the hearing court expressly considered the age of the lineup participants in rendering its decision (see People v. Powell, 101 A.D.3d 756, 757, 955 N.Y.S.2d 608;  People v. Davis, 69 A.D.3d 647, 648–649, 892 N.Y.S.2d 200;  but see People v. Colon, 46 A.D.3d 260, 262–264, 847 N.Y.S.2d 44).

When age is considered along with other factors, such as skin tone, height, and the presence of a distinctive tattoo on the defendant's neck (which was plainly visible when one of the witnesses asked each of the lineup participants to step close to the one-way mirror), the lineup, in my view, was unduly suggestive (see People v. Robinson, 123 A.D.3d 1062, 999 N.Y.S.2d 499;  People v. Dobbins, 112 A.D.3d 735, 976 N.Y.S.2d 213;  People v. Puckett, 270 A.D.2d 364, 705 N.Y.S.2d 381;  People v. Murphy, 260 A.D.2d 505, 686 N.Y.S.2d 332;  People v. Breitenbach, 260 A.D.2d 389, 687 N.Y.S.2d 437).

Accordingly, I respectfully dissent.

MASTRO, J.P., ROMAN and MALTESE, JJ., concur.

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