People v Rodriguez
2008 NY Slip Op 05751 [52 AD3d 399] [52 AD3d 399]
June 24, 2008
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, August 13, 2008

The People of the State of New York, Respondent,
Jonathan Rodriguez, Appellant.

[*1] Robert S. Dean, Center for Appellate Litigation, New York (William A. Loeb of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Eleanor J. Ostrow of counsel), for respondent.

Judgment, Supreme Court, New York County (Charles J. Tejada, J., at hearing; Carol Berkman, J., at trials and sentence), rendered June 2, 2005, convicting defendant, after two jury trials, of manslaughter in the first degree and assault in the second degree, and sentencing him to concurrent terms of 25 years and seven years, respectively, unanimously affirmed.

The court properly denied defendant's motion to suppress identification testimony. The lineup photographs demonstrate the lineup was not suggestive (see People v Chipp, 75 NY2d 327, 336 [1990], cert denied 498 US 833 [1990]). Defendant did not stand out as significantly younger than the other lineup participants. The disparity between the actual ages of a defendant and other lineup participants has little relevance unless such disparity is reflected in their physical appearances (see People v Grant, 43 AD3d 800, 801 [2007], lv denied 9 NY3d 990 [2007]; People v Amuso, 39 AD3d 425 [2007], lv denied 9 NY3d 862 [2007]).

Defendant failed to preserve his claim that the court at his second trial erred in instructing the jury that it should not consider self-defense or justification, and we decline to review it in the interest of justice. As an alternative holding, we also reject it on the merits. The court reasonably anticipated that although defendant did not raise a justification defense, there was some evidence in the case that might lead the jury to speculate about such a defense. Accordingly, the court properly exercised its discretion in directing the jury not to consider that issue (cf. People v Medor, 39 AD3d 362 [2007], lv denied 9 NY3d 867 [2007]), and this [*2]instruction could not have undermined defendant's misidentification defense or caused him any prejudice.

We perceive no basis for reducing the sentence. Concur—Lippman, P.J., Tom, Gonzalez, Buckley and Catterson, JJ.