People v Jackson, 2011 NY Slip Op 09022 [90 AD3d 519]

Dcmbr 15, 2011

Appellate Division, First Department

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Richard M. Greenberg, Office of the Appellate Defender, New York (Lauren Stephens-Davidowitz of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Yuval Simchi-Levi of counsel), for respondent.

Judgment, Supreme Court, New York County (Daniel Conviser, J., at hearing; Bonnie G. Wittner, J., at plea and sentencing), rendered September 8, 2009, convicting defendant of attempted burglary in the first degree, and sentencing him, as a second felony offender, to a term of seven years, unanimously affirmed.

The court properly denied defendant’s suppression motion. The record supports the hearing court’s finding that the lineup was not unduly suggestive ( see People v Chipp , 75 NY2d 327, 336 [1990], cert denied 498 US 833 [1990]). The lineup participants were sufficiently similar, and none of the differences between defendant and the others, when viewed in light of the description given by the victim, created a substantial likelihood that defendant would be singled out for identification ( see People v Jackson , 98 NY2d 555, 558-559 [2002]). The age and clothing disparities among the lineup participants were not so noticeable as to call attention to defendant. The record does not support defendant’s claim that the police pressured the victim into identifying someone. We have considered and rejected defendant’s remaining arguments concerning the lineup.

Defendant’s Fourth Amendment claim is without merit. Probable cause for defendant’s arrest was amply provided by the victim’s identification of the person depicted in a surveillance photograph as the perpetrator of the crime, coupled with evidence establishing that defendant was the person depicted. Defendant’s challenges to the reliability of the evidence may have raised issues to be resolved at trial, had defendant chosen to go to trial, but they do not negate or undermine probable cause ( see People v Roberson , 299 AD2d 300 [2002], lv denied 99 NY2d 619 [2003]). Concur—Tom, J.P., Friedman, Freedman, Richter and Manzanet-Daniels, JJ..