679 N.Y.S.2d 109 | N.Y. App. Div. | 1998
—Judgment, Supreme Court, New York County (Alvin Schlesinger, J.), rendered December 20, 1996, convicting defendant, after a non-jury trial, of attempted sodomy in the first degree and sexual abuse in the first degree, and sentencing him to concurrent terms of 2 to 6 years and 1 to 3 years, respectively, unanimously affirmed.
Defendant’s motion to suppress identification testimony was properly denied. The five fillers in the lineup were sufficiently similar in appearance to defendant that they did not create a substantial likelihood defendant would be singled out for identification (see, People v Chipp, 75 NY2d 327, 336, cert denied 498 US 833). The variation in skin tone among the various members of the lineup was not significant, and the lineup photograph does not substantiate his claim of suggestiveness with respect to the manner in which defendant was dressed.
The existing record, which defendant has not sought to amplify by way of a CPL 440.10 motion, establishes that counsel provided meaningful representation (see, People v Baldi, 54 NY2d 137, 146-147), and counsel’s decisions regarding elicitation of defendant’s prior conviction were strategically plausible and non-prejudicial in the context of a nonjury trial (see, People v Samuels, 240 AD2d 303, lv denied 91 NY2d 879; People v Watson, 162 AD2d 360).
Defendant’s remaining contention is unpreserved and we decline to review it in the interest of justice. Were we to review it, we would reject it. Concur — Milonas, J. P., Rosenberger, Wallach, Tom and Mazzarelli, JJ.
