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The People of the State of New York v. Michael D. Gandy

New York v. Michael D. Gandy

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The Legal Aid Bureau of Buffalo, Inc., Buffalo (Susan R. Hutchison of Counsel), for Defendant-Appellant. John J. Flynn, District Attorney, Buffalo (Daniel J. Mattle of Counsel), for Respondent. Appeal from a judgment of the Supreme Court, Erie County (Russell P. Buscaglia, A.J.), rendered February 7, 2020. The judgment convicted defendant, upon a guilty plea, of attempted robbery in the first degree and criminal possession of a weapon in the second degree. It is hereby ORDERED that the judgment so appealed from is unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of attempted robbery in the first degree (Penal Law §§ 110.00, 160.15 [2]) and criminal possession of a weapon in the second degree (§ 265.03 [3]). We agree with defendant that he did not validly waive his right to appeal (see People v. Franklin, 217 AD3d 1427, 1427 [4th Dept 2023]; see generally People v. Thomas, 34 NY3d 545, 565-566 [2019], cert denied — US —, 140 S Ct 2634 [2020]). Nevertheless, we reject defendant’s contention that Supreme Court erred in refusing to suppress identification evidence on the ground that the photo array from which a witness identified him was unduly suggestive. Although defendant was the only person depicted in a red shirt in the photo array, the shirt was “not so distinctive as to be conspicuous” (People v. LaCross, 175 AD3d 1838, 1838 [4th Dept 2019], lv denied 34 NY3d 1130 [2020]). Nor did slight differences in the background color of the photographs taint the photo array. The mere fact that defendant’s photograph “has a slightly [darker] background than [some of] the others does not support the conclusion that the identification procedure was unduly suggestive” (People v. Evans, 137 AD3d 1683, 1683 [4th Dept 2016], lv denied 27 NY3d 1131 [2016]). Finally, contrary to defendant’s contention, his sentence is not unduly harsh or severe.

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