People v. Garcia — 182 A.D.2d 518

Majority

p. 518

The People of the State of New York, Respondent, v Javier Garcia, Appellant.

Judgment, Supreme Court, New York County (Harold J. Rothwax, J.), rendered February 28, 1990, convicting defendant, after jury trial, of murder in the second degree, and sentencing him to a prison term of 20 years to life, unanimously affirmed.

Giving proper deference to the findings of the hearing court (People v Prochilo, 41 NY2d 759 , 761) we agree that the difference in skin tones between defendant and some of the fill-ins, "when considered together with the similarity of age, height and body type of all the fill-ins was not sufficient to create a substantial likelihood that the defendant would be

p. 519

singled out for identification”, and that the lineup, therefore, was not unduly suggestive (People v Chipp, 75 NY2d 327 , 336). Nor is there merit to defendant’s argument that photographs showing the victim’s corpse should have been excluded from evidence as inflammatory, since the photographs in question were relevant to material issues at trial (People v Pobliner, 32 NY2d 356 , 369-370, cert denied 416 US 905 ), and served to elucidate and corroborate other evidence bearing on these issues (People v Stevens, 76 NY2d 833 , 836).

We have considered defendant’s other arguments and find them to be either unpreserved or without merit. Concur— Carro, J. P., Kupferman, Asch and Smith, JJ.

Cases cited

People v. Chipp 75 NY2d 327 N.Y. 1990-02-15 at 336 p. 519
People v. Pobliner 32 NY2d 356 N.Y. 1973-05-04 at 369-370 p. 519
People v. Stevens 76 NY2d 833 N.Y. 1990-07-10 at 836 p. 519