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

682
KA 10-02355
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                                     MEMORANDUM AND ORDER

MARQUIL L. ADAMS, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BARBARA J. DAVIES OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MARQUIL L. ADAMS, DEFENDANT-APPELLANT PRO SE.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. SMALL OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Penny
M. Wolfgang, J.), rendered November 29, 2010. The judgment convicted
defendant, upon a jury verdict, of robbery in the first degree and
robbery in the second degree.

     It is hereby ORDERED that the case is held, the decision is
reserved and the matter is remitted to Supreme Court, Erie County, for
further proceedings.

      Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of robbery in the first degree (Penal Law §160.15
[4]) and robbery in the second degree (§160.10 [1]). Contrary to
defendant’s contention, we conclude that the evidence, when viewed in
the light most favorable to the People (see People v Contes, 60 NY2d
620, 621), is legally sufficient to establish his identity as one of
the perpetrators of the robbery (see People v Brown, 92 AD3d 1216-
1217, lv denied ___ NY3d ___ [Apr. 30, 2012]). We further conclude
that the verdict is not against the weight of the evidence on the
issue of identification (see People v Young, 74 AD3d 1471, 1472, lv
denied 15 NY3d 811; see generally People v Bleakley, 69 NY2d 490,
495).

     Defendant also contends that the pretrial identification by the
robbery victim from a photo array should have been suppressed as the
fruit of an illegal arrest (see generally People v Hill, 53 AD3d 1151,
1151; People v Robinson, 282 AD2d 75, 79-82). In its ruling on
defendant’s suppression motion, Supreme Court concluded that the photo
array procedure was not unduly suggestive, but failed to address the
legality of defendant’s detention or arrest. “CPL 470.15 (1)
precludes [this Court] from reviewing an issue that was either decided
in an appellant’s favor or was not decided by the trial court” (People
                                 -2-                           682
                                                         KA 10-02355

v Ingram, 18 NY3d 948, 949; see People v LaFontaine, 92 NY2d 470, 474,
rearg denied 93 NY2d 849). Thus, we may not resolve defendant’s
contention regarding a theory not addressed by the court. We
therefore hold the case, reserve decision and remit the matter to
Supreme Court to determine whether the identification testimony should
be suppressed as the fruit of an illegal detention or arrest (see
generally People v Chattley, 89 AD3d 1557, 1558).




Entered:   June 15, 2012                       Frances E. Cafarell
                                               Clerk of the Court
