PEOPLE v. KILLIMAYER


40 A.D.3d 1118 (2007)

837 N.Y.S.2d 288

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JOSEPH KILLIMAYER, Appellant.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided May 29, 2007.


Ordered that the judgment is affirmed.

The defendant's argument that the photographic array was rendered unduly suggestive by the presence of height markers behind some of the stand-ins is unpreserved for appellate review (see generally People v Gray, 86 N.Y.2d 10, 18 [1995]). In any event, the test for determining whether a pretrial identification was so unfair as to be violative of due process is whether "`the confrontation...

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