People v Michael Mack

People v Mack 2004 NY Slip Op 09671 [13 AD3d 653] December 27, 2004 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 23, 2005

The People of the State of New York, Respondent,
v
Michael Mack, Appellant.

—[*1]

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Hall, J.), rendered February 13, 2002, convicting him of robbery in the first 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 failed to preserve for appellate review his contention that the lineup was unduly suggestive (see People v Figaro, 305 AD2d 697, 697-698 [2003]). In any event, the Supreme Court properly denied the defendant's motion to suppress the victim's identification testimony on that basis. The presence of minor differences in appearance between the defendant and the other participants did not render the lineup procedure unduly suggestive (see People v Figaro, supra at 698). The defendant's contention that the victim's identification testimony should have been suppressed by reason of her participation in a photographic identification procedure was properly rejected for the same reason.

Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), 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 [*2]the verdict of guilt was not against the weight of the evidence (see CPL 470.15 [5]).

The defendant's remaining contentions, including those raised in his supplemental pro se brief, either are unpreserved for appellate review or without merit. H. Miller, J.P., Krausman, Cozier and Spolzino, JJ., concur.