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

1426
KA 10-01556
PRESENT: SCUDDER, P.J., CENTRA, CARNI, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT

                    V                             MEMORANDUM AND ORDER

TAYE M. BROWN, DEFENDANT-APPELLANT.


EASTON THOMPSON KASPEREK SHIFFRIN LLP, ROCHESTER (DONALD M. THOMPSON
OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (ROBERT J. SHOEMAKER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Alex R. Renzi,
J.), rendered March 11, 2009. The judgment convicted defendant, upon
a jury verdict, of assault in the first degree.

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

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of assault in the first degree (Penal Law § 120.10
[1]). We reject defendant’s contention that County Court erred in
denying his motion seeking to suppress the identification testimony of
two witnesses on the ground that the photo array used in the pretrial
identification procedures was unduly suggestive. We note that one
witness did not make a positive identification of defendant from any
photo array at any time. Instead, that witness identified defendant
in a lineup procedure. The other witness made a positive
identification of defendant from a photo array and again in a lineup
procedure conducted 53 days later. Contrary to defendant’s
contention, the fact that he was photographed from a closer range did
not impermissibly draw attention to his photograph in the array (see
People v Brown, 169 AD2d 934, 935, lv denied 77 NY2d 958; see also
People v Smiley, 49 AD3d 1299, 1300, lv denied 10 NY3d 870). In
addition, the court properly declined to suppress the lineup
identification on the ground that it was influenced by the
suggestiveness of the photo array procedure. We conclude that the
passage of time between the photographic array and the lineup
procedure was sufficient to dissipate any taint of suggestiveness (see
People v Thompson, 17 AD3d 138, 139, lv denied 5 NY3d 795; People v
Allah, 158 AD2d 605, 606, lv denied 76 NY2d 730).

     We reject defendant’s further contention that the procedure
followed by the court with respect to a jury note during jury
                                 -2-                          1426
                                                         KA 10-01556

deliberations violated the procedure set forth by the Court of Appeals
in People v O’Rama (78 NY2d 270, 277-278), and we conclude that the
court fulfilled its “core responsibilities under CPL 310.30” (People v
Tabb, 13 NY3d 852, 853). Indeed, the record clearly indicates that
defense counsel assisted in formulating responses to the specific
factual inquiries presented in the jury note (see People v Williams,
50 AD3d 472, 473, lv denied 10 NY3d 940). Further, defendant failed
to preserve for our review his contention with respect to that part of
the jury note requesting readbacks of certain trial testimony (see
People v Alcide, 95 AD3d 897, 898, affd 21 NY3d 687), and we decline
to reach that contention as a matter of discretion in the interest of
justice (see CPL 470.15 [6] [a]). Lastly, defendant waived his right
to be notified of the jury’s request for the trial exhibits, to be
present for the reading of any such request in a jury note, and to
have any input into the manner of delivery of the exhibits to the jury
(see People v King, 56 AD3d 1193, 1194, lv denied 11 NY3d 926).




Entered:   February 13, 2015                   Frances E. Cafarell
                                               Clerk of the Court
