This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
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No. 68 SSM 42
The People &c.,
            Respondent,
        v.
Darren Staton,
            Appellant.




          Submitted by Bryan D. Kreykes, for appellant.
          Submitted by Merri Turk Lasky, for respondent.




MEMORANDUM:
          The order of the Appellate Division should be affirmed.
          Defendant Darren Staton appeals from an order of the
Appellate Division, which affirmed Supreme Court's judgment and
brings up for review denial of defendant's motion to suppress

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identification testimony and his subsequent conviction.
Defendant argues that the pre-trial photo array that led to his
arrest was unduly suggestive because he appeared older than the
fillers and was the only participant with salt and pepper hair.
The Appellate Division's finding that the array was not unduly
suggestive is supported by the record, and therefore beyond our
further review (People v Holley, 26 NY3d 514, 524 [2015]).
Consequently, defendant's contention that the photo array tainted
the lineup after his arrest, to the extent this argument is
preserved, is without merit.    Additionally, defendant's argument
that he was denied right to counsel is belied by the record
(People v Caban, 5 NY3d 143, 152 [2005]), and he has failed to
demonstrate the absence of any strategic or legitimate
explanation for counsel's silence and inaction at sentencing
(People v Wright, 25 NY3d 769, 779 [2015]).
*   *   *   *   *   *   *   *    *      *   *   *   *   *   *   *   *
On review of submissions pursuant to section 500.11 of the Rules,
order affirmed, in a memorandum. Chief Judge DiFiore and Judges
Rivera, Abdus-Salaam, Stein, Fahey, Garcia and Wilson concur.

Decided February 16, 2017




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