People v. Sylvester

Appeal from a judgment of the Supreme Court, Erie County (Mario J. Rossetti, A.J.), rendered November 17, 2004. The judgment convicted defendant, after a nonjury trial, of grand larceny in the fourth degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him after a nonjury trial of grand larceny in the fourth degree (Penal Law § 155.30 [1]). We reject the contention of defendant that the photo array was unduly suggestive and thus that Supreme Court erred in denying that part of his motion seeking to suppress the in-court identification testimony of a witness to *1227the crime. The fact that defendant’s photograph was clearer than the other photographs in the array does not require suppression (see People v Sawyer, 253 AD2d 501 [1998], lv denied 92 NY2d 930 [1998]). The composition and presentation of the photo array were such that there was no reasonable possibility that the attention of the witness would be drawn to defendant as the suspect chosen by the police (see People v Hall, 177 AD2d 951 [1991], lv denied 79 NY2d 948 [1992]; see also People v Chipp, 75 NY2d 327, 336 [1990], cert denied 498 US 833 [1990]).

Contrary to the further contention of defendant, because the evidence established that the value of the merchandise taken was in excess of $1,000, it is legally sufficient to support the conviction of grand larceny in the fourth degree (see People v Blackburn, 207 AD2d 1008 [1994], lv denied 84 NY2d 1009 [1994]). The sentence is not unduly harsh or severe.

We have considered defendant’s remaining contentions and conclude that they are without merit. Present — Pigott, Jr., P.J., Kehoe, Martoche, Smith and Pine, JJ.