People v. Owens

Judgment, Supreme Court, New York County (Cassandra M. Mullen, J. at hearing; Eduardo Padró, J. at plea and sentencing), rendered January 25, 2013, convicting defendant of robbery in the second degree, and sentencing him to a term of one to three years, unanimously affirmed.

The court properly denied defendant’s suppression motion. The hearing record and our examination of a copy of a photo array support the court’s finding that the array was not unduly suggestive (see People v Chipp, 75 NY2d 327, 336 [1990], cert denied 498 US 833 [1990]). The alleged discrepancies in skin tone and facial hair between defendant and the fillers were not noticeable (see e.g. People v Sanchez, 95 AD3d 241, 250 [1st Dept 2012], affd 21 NY3d 216 [2013]), and the fact that defendant was depicted wearing a very common article of clothing that was briefly referred to in the identifying witness’s description did not call attention to defendant (see e.g. People v Drayton, 70 AD3d 595 [1st Dept 2010], lv denied 15 NY3d 749 [2010]).