Opinion
March 21, 2000
Judgment, Supreme Court, Bronx County (Robert Cohen, J., at hearing; John Moore, J., at jury trial and sentence), rendered May 12, 1997, convicting defendant of murder in the second degree and attempted murder in the second degree, and sentencing him to consecutive terms of 25 years to life and 8+ to 25 years, unanimously affirmed.
Edward L. Schnitzer, for respondent.
Cynthia Colt, for defendant-appellant.
ROSENBERGER, J.P., ELLERIN, RUBIN, FRIEDMAN, JJ.
Defendant's suppression motion was properly denied. Defendant's contention that the photographic array was unduly suggestive because the other five men appeared to be darker-skinned than defendant is not preserved for appellate review since defendant failed to raise the issue during the Wade hearing (People v. Tutt, 38 N.Y.2d 1011, 1013), and we decline to review it in the interest of justice. Were we to review this claim, we would find that the photo array was not unduly suggestive. Moreover, the subsequent lineup identification, which defendant does not challenge, was conducted over two years after the photo array procedure, and the passage of time was sufficient to attenuate any possible suggestiveness (People v. Reynoso, 182 A.D.2d 546, lv denied 80 N.Y.2d 836).
The verdict was based on legally sufficient evidence and was not against the weight of the evidence. We see no reason to disturb the jury's determinations concerning credibility and identification.
We perceive no abuse of sentencing discretion.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.