People v. Solivan

People v Solivan (2018 NY Slip Op 00334) People v Solivan 2018 NY Slip Op 00334 Decided on January 18, 2018 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on January 18, 2018 Acosta, P.J., Sweeny, Gische, Andrias, Gesmer, JJ. 5476 5110/13 [*1]The People of the State of New York, Respondent, v Joseph Solivan, Defendant-Appellant. Seymour W. James, Jr., The Legal Aid Society, New York (Jonathan Garelick of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Amanda Katherine Regan of counsel), for respondent. Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), rendered September 3, 2014, convicting defendant, upon his plea of guilty, of attempted robbery in the second degree, and sentencing him, as a second violent felony offender, to a term of five years, unanimously affirmed. The record supports the court's finding that a photo array was not unduly suggestive. Defendant and the other participants were reasonably similar in appearance (see People v Chipp , 75 NY2d 327, 335 [1990], cert denied 498 US 833 [1990]), and the differences between defendant's photo and the other photos were not sufficient to create a substantial likelihood that defendant would be singled out for identification (id . at 336; see also People v Foster , 272 AD2d 410, 410-11 [2d Dept 2000], lv denied 95 NY2d 889 [2000]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: JANUARY 18, 2018 CLERK