People v Owens

People v Owens 2017 NY Slip Op 04781 Decided on June 13, 2017 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 13, 2017
Acosta, P.J., Renwick, Richter, Feinman, Webber, JJ.
4234 1870/11

[*1]The People of the State of New York, Respondent,

v

Lance Owens, Defendant-Appellant.

Seymour W. James, Jr., The Legal Aid Society, New York (Katheryne M. Martone of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Julia P. Cohen of counsel), for respondent.

Judgment, Supreme Court, New York County (Cassandra M. Mullen, J. at hearing; Eduardo Padró, J. at plea and sentencing), rendered January 25, 2013, convicting defendant of robbery in the second degree, and sentencing him to a term of one to three years, unanimously affirmed.

The court properly denied defendant's suppression motion. The hearing record and our examination of a copy of a photo array support the court's finding that the array was not unduly suggestive (see People v Chipp, 75 NY2d 327, 336 [1990], cert denied 498 US 833 [1990]). The alleged discrepancies in skin tone and facial hair between defendant and the fillers were not noticeable (see e.g. People v Sanchez, 95 AD23d 241, 250 [1st Dept 2012], affd 21 NY3d 216 [2013]), and the fact that defendant was depicted wearing a very common article of clothing that was briefly referred to in the identifying witness's description did not call attention to defendant (see e.g. People v Drayton, 70 AD3d 595 [1st Dept 2010], lv denied 15 NY3d 749 [2010]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 13, 2017

CLERK