People v. Gray

Oct 7, 1992
Versions:186 A.D.2d 1058
590 N.Y.S.2d 785
1992 N.Y. App. Div. LEXIS 11679

— Judgment unanimously affirmed. Memorandum: County Court properly denied defendant’s motion to suppress his identification on the basis of an impermissibly suggestive photo array. The fact that the background of defendant’s photograph differed in color from that of the others does not support the conclusion that the procedure was unduly suggestive where, as here, the surrounding photos all depicted men sharing physical attributes similar to defendant (see, People v Burns, 186 AD2d 1015 [decided herewith]; People v Floyd, 173 AD2d 211, 212, lv denied 78 NY2d 966; People v Emmons, 123 AD2d 475, 476, lv denied 69 NY2d 827).

Defendant has failed to preserve his contention that the trial court erred in its charge to the jury (see, CPL 470.05 [2]), and we decline to exercise our discretion to reach it in the interest of justice (see, CPL 470.15 [6] [a]; People v Mason, 177 *1059AD2d 988, lv denied 79 NY2d 950). In any event, defendant’s contention is without merit inasmuch as the court’s whole charge conveyed the proper standard concerning the presumption of innocence and reasonable doubt (see, e.g., People v Canty, 60 NY2d 830, 831-832). Defendant’s request for a missing witness charge, made after summations and following completion of the court’s charge, was untimely and properly denied (see, People v Gonzalez, 68 NY2d 424, 427-428; People v Ruiz, 176 AD2d 683, 684, lv denied 79 NY2d 952; People v Yopp, 142 AD2d 982, 983, lv denied 72 NY2d 1051). (Appeal from Judgment of Monroe County Court, Maloy, J. — Robbery, 3rd Degree.) Present — Callahan, J. P., Boomer, Pine, Fallon and Doerr, JJ.