People v Cando

People v Cando 2009 NY Slip Op 09074 [68 AD3d 479] December 8, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 10, 2010

The People of the State of New York, Respondent,
v
Jonathan Cando, Appellant.

—[*1] Richard M. Greenberg, Office of the Appellate Defender, New York (Risa Gerson of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Sheila L. Bautista of counsel), for respondent.

Judgment, Supreme Court, New York County (A. Kirke Bartley, J., at suppression hearing; Robert Stolz, J., at jury trial and sentence), rendered March 19, 2008, convicting defendant of robbery in the second degree, and sentencing him to a term of 3½ years, unanimously affirmed.

The verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury's determinations concerning identification. The victim had a sufficient opportunity to observe defendant, gave a detailed and accurate description, and made a reliable lineup identification.

The court properly denied defendant's suppression motion. The hearing evidence, including the lineup photographs, establishes that the lineup was not unduly suggestive (see People v Chipp, 75 NY2d 327, 336 [1990], cert denied 498 US 833 [1990]). Defendant was not noticeably younger than the other participants, and the police successfully concealed anything distinctive about defendant's hairstyle by having all the participants wear hats. Concur—Tom, J.P., Nardelli, Renwick, Freedman and Roman, JJ.