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

456
KA 08-00830
PRESENT: SMITH, J.P., CENTRA, PERADOTTO, GORSKI, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JAMEL WESTON, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (WILLIAM G. PIXLEY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Onondaga County
(John J. Brunetti, A.J.), rendered May 18, 2007. The judgment
convicted defendant, upon his plea of guilty, of robbery in the first
degree (two counts), robbery in the second degree, criminal possession
of a weapon in the second degree and criminal possession of a weapon
in the third degree.

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

     Memorandum: On appeal from a judgment convicting him upon his
guilty plea of, inter alia, two counts of robbery in the first degree
(Penal Law § 160.15 [2]), defendant contends that the photo array
identification procedure in which his accomplice was the witness was
unduly suggestive (see generally People v Chipp, 75 NY2d 327, 335,
cert denied 498 US 833). We reject that contention. Because “the
subjects depicted in the photo array [were] sufficiently similar in
appearance so that the viewer’s attention [was] not drawn to any one
photograph in such a way as to indicate that the police were urging a
particular selection,” the photo array itself was not unduly
suggestive (People v Quinones, 5 AD3d 1093, 1093, lv denied 3 NY3d
646). Likewise, the circumstances in which the police presented the
photo array were not unduly suggestive. During his interview with the
police, the accomplice indicated that he knew the perpetrator by his
nickname, “Ratchet.” Upon presenting the photo array, the police
officer asked the accomplice to identify the man he knew as “Ratchet”
if he could do so, but the officer neither told the accomplice that
“Ratchet” was actually depicted in the photo array, nor did the
officer instruct the accomplice that he was required to make an
identification (see People v Floyd, 45 AD3d 1457, 1459, lv denied 10
                            -2-                  456
                                           KA 08-00830

NY3d 810, 811, 818).




Entered:   April 29, 2011         Patricia L. Morgan
                                  Clerk of the Court
