People v Rodriguez

People v Rodriguez 2008 NY Slip Op 00051 [47 AD3d 417] January 3, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 12, 2008

The People of the State of New York, Respondent,
v
Gene Rodriguez, Appellant.

—[*1] Robert S. Dean, Center for Appellate Litigation, New York City (Jan Hoth of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Alice Wiseman of counsel), for respondent.

Judgment, Supreme Court, New York County (Carol Berkman, J.), rendered October 19, 2005, convicting defendant, upon his plea of guilty, of attempted robbery in the first degree, and sentencing him to a term of seven years, unanimously affirmed.

The court properly denied, without a hearing, defendant's motion to suppress identification testimony. There was no need for a hearing pursuant to People v Rodriguez (79 NY2d 445 [1992]). Defendant never disputed the People's assertion, set forth in opposition to defendant's omnibus motion, that defendant was sufficiently known to the victim so as to render the photo identification merely confirmatory (see People v Estrada, 241 AD2d 378, 379 [1997], lv denied 91 NY2d 925 [1998]). Furthermore, the People's claims that defendant and the victim worked together for several months, and that the victim knew defendant's first name, established a relationship familiarity that ensured the identification was not susceptible to police suggestion. Moreover, the People's allegation that the crime took place at a prearranged meeting between defendant and the victim was at odds with any issue of mistaken identity. Finally, the court properly relied on grand jury minutes in confirming the People's allegations (see People v Won, 208 AD2d 393 [1994], lv denied 84 NY2d 1040 [1995]). Concur—Andrias, J.P., Nardelli, Buckley and Catterson, JJ.