        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

410
KA 11-01583
PRESENT: SMITH, J.P., VALENTINO, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

GARTH HILL, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (ROMANA A. LAVALAS
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Anthony F.
Aloi, J.), rendered July 27, 2011. The judgment convicted defendant,
upon his plea of guilty, of burglary in the third degree and sexual
abuse in the first degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of burglary in the third degree (Penal Law § 140.20)
and sexual abuse in the first degree (§ 130.65 [1]), defendant
contends that County Court erred in denying his motion to suppress
identification testimony on the ground that the lineup procedure was
conducted after the two victims viewed photo arrays containing
defendant’s picture. We reject that contention. “It is well settled
that ‘[m]ultiple pretrial identification procedures are not inherently
suggestive’ ” (People v Morgan, 96 AD3d 1418, 1419, lv denied 20 NY3d
987), and here “the record supports the court’s determination that the
photo array[s] and subsequent lineup were not so suggestive as to
create the substantial likelihood that defendant would be
misidentified” (People v Peterkin, 81 AD3d 1358, 1359, lv denied 17
NY3d 799 [internal quotation marks omitted]). Contrary to defendant’s
further contention, the People established the reasonableness of the
lineup identification procedure, and defendant failed to meet his
ultimate burden of establishing that the lineup was unduly suggestive
(see People v Snell, 118 AD3d 1350, 1350, lv denied 24 NY3d 965).
Although defendant was taller than two of the fillers used in the
lineup, “ ‘the alleged variations in appearance between the fillers
and the defendant were not so substantial as to render the lineup
impermissibly suggestive’ ” (People v Davis, 115 AD3d 1167, 1170, lv
denied 23 NY3d 1019; see People v Chipp, 75 NY2d 327, 336, cert denied
498 US 833; People v Freeney, 291 AD2d 913, 913, lv denied 98 NY2d
                                 -2-                          410
                                                        KA 11-01583

637).

      Defendant contends that the court erred in refusing to suppress
his statements to the police because he was under the influence of a
controlled substance when he waived his Miranda rights, and thus his
waiver was invalid. We reject that contention, inasmuch as there is
no evidence that defendant “ ‘was intoxicated to the degree of mania,
or of being unable to understand the meaning of his statements’ ”
(People v Schompert, 19 NY2d 300, 305, cert denied 389 US 874; see
People v Peterkin, 89 AD3d 1455, 1455, lv denied 18 NY3d 885).
Finally, defendant failed to preserve for our review his challenge to
the voluntariness of his plea inasmuch as he failed to move to
withdraw the plea or to vacate the judgment of conviction (see People
v Kuras, 49 AD3d 1196, 1197, lv denied 10 NY3d 866; People v DeJesus,
248 AD2d 1023, 1023, lv denied 92 NY2d 878). Contrary to defendant’s
contention, this case does not fall within the rare exception to the
preservation requirement set forth in People v Lopez (71 NY2d 662,
666).




Entered:   March 27, 2015                      Frances E. Cafarell
                                               Clerk of the Court
