People v Miller

People v Miller 2006 NY Slip Op 07379 [33 AD3d 728] October 10, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 13, 2006

The People of the State of New York, Respondent,
v
Johnny Miller, Appellant.

—[*1]

Appeal by the defendant from a judgment of the County Court, Dutchess County (Hayes, J.), rendered October 12, 2005, convicting him of robbery in the first degree, upon his plea of guilty, 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.

Contrary to the defendant's contention, the photo array from which the complainant identified the defendant was not unduly suggestive. A photographic display is suggestive when some characteristic of one picture draws the viewer's attention to it, indicating that the police have made a particular selection (see People v Wright, 297 AD2d 391 [2002]; People v Boria, 279 AD2d 585, 586 [2001]; People v Robert, 184 AD2d 597 [1992]). An examination of the six-photograph array employed in this case reveals that the defendant's photograph did not have a significantly darker background and there were no other characteristics in the photograph that would draw the viewer's attention to the photograph. Furthermore, the defendant's appearance and facial expression did not differ greatly from those of the men in the other photographs (see People v Ragunauth, 24 AD3d 472 [2005]; People v Wright, supra; People v Williams, 289 AD2d 270 [2001]). Adams, J.P., Goldstein, Fisher and Lifson, JJ., concur.