Opinion
3975.
Decided June 22, 2004.
Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered November 22, 2002, convicting defendant, after a jury trial, of assault in the first and second degrees, and sentencing him to concurrent terms of 7 years and 5 years, respectively, unanimously affirmed.
Stanley Neustadter, New York, for appellant.
Robert M. Morgenthau, District Attorney, New York (Heather Pearson of counsel), for respondent.
Before: Buckley, P.J., Tom, Saxe, Sullivan, Friedman, JJ.
The court properly denied defendant's suppression motion. Defendant is not entitled to suppression on the ground that the lineup should have been conducted in sequential fashion, as the attorney attending the lineup had requested. We know of no authority for the proposition that failure to employ a sequential procedure may be a basis for suppression of a lineup ( see Matter of Thomas, 189 Misc.2d 487, 490-491). Under existing authority, the only issue is whether the subject lineup was unduly suggestive, and the record establishes that it met constitutional standards ( see People v. Chipp, 75 N.Y.2d 327, 336, cert denied 498 U.S. 833). The record does not support defendant's contention that comments made by an officer to one of the witnesses who viewed the lineup coerced her into making an identification. Instead, the record reveals that the officer simply responded to the witness's procedural questions and properly instructed her to make an identification only if she was positive that the person she selected was the assailant.
Viewing the evidence in a light most favorable to the People ( People v. Contes, 60 N.Y.2d 620), we conclude that it was legally sufficient to establish that defendant, "with intent to disfigure another person seriously and permanently", caused such injury (Penal Law § 120.10) by repeatedly punching and kicking the victim, causing, among other things, a permanent and noticeable change in the shape of his face ( see People v. Martinez, 257 A.D.2d 667, lv denied 93 N.Y.2d 974; see also People v. Crawford, 200 A.D.2d 683, lv denied 83 N.Y.2d 870).
We perceive no basis for reducing the sentence.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.