Opinion
2000-09968.
December 1, 2003.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (J. Goldberg, J.), rendered October 17, 2000, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Firetog, J.), of that branch of the defendant's omnibus motion which was to suppress identification testimony.
Lynn W.L. Fahey, New York, N.Y. (Warren S. Landau of counsel), for appellant, and appellant pro se.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Solomon Neubort of counsel), for respondent.
Before: DANIEL F. LUCIANO, SANDRA L. TOWNES, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
The defendant's contention that the lineup was unduly suggestive because the fillers differed in age, skin tone, and facial hair is partially unpreserved for appellate review ( see CPL 470.05) and in any event, is without merit ( see People v. Brabham, 271 A.D.2d 692; People v. Cintron, 226 A.D.2d 390). However, in view of the fact that the defendant was the only person in the lineup wearing the beige color which had figured prominently in the witness' description of one of the perpetrators, the lineup was unduly suggestive ( see People v. Bady, 202 A.D.2d 440; People v. Lloyd, 108 A.D.2d 873, affd 66 N.Y.2d 964; People v. Sapp, 98 A.D.2d 784; cf. People v. Tinnen, 238 A.D.2d 615). Reversal is not mandated, however, because the suggestive procedure did not create a substantial likelihood of misidentification. The witness who identified the defendant at the lineup had identified the defendant at a prior photographic array and also had the opportunity to view the defendant before, during, and after the shooting ( see People v. Lizardi, 166 A.D.2d 672; People v. Darnell, 146 A.D.2d 583; People v. Lloyd, supra; People v. Adams, 115 A.D.2d 542).
The defendant's challenge to the legal sufficiency of the evidence is unpreserved for appellate review ( see CPL 470.05; People v. Gray, 86 N.Y.2d 10; People v. Udzinski, 146 A.D.2d 245). In any event, viewing the evidence in the light most favorable to the prosecution ( see People v. Contes, 60 N.Y.2d 620), 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 the verdict of guilt was not against the weight of the evidence ( see CPL 470.15).
The trial court's marshaling of the evidence did not deprive the defendant of his right to a fair trial ( see People v. Culhane, 45 N.Y.2d 757, cert denied 439 U.S. 1047).
The defendant's remaining contentions, including those raised in his supplemental pro se brief, either are unpreserved for appellate review or without merit.
SMITH, J.P., McGINITY, LUCIANO and TOWNES, JJ., concur.