
    [71 NE3d 939, 49 NYS3d 351]
    The People of the State of New York, Respondent, v Darren Staton, Appellant.
    Decided February 16, 2017
    APPEARANCES OF COUNSEL
    
      Lynn W.L. Fahey, Appellate Advocates, New York City (Bryan D. Kreykes of counsel), for appellant.
    
      
      Richard A. Brown, District Attorney, Kew Gardens (Merri Turk Lasky of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant Darren Staton appeals from an order of the Appellate Division, which affirmed Supreme Court’s judgment and brings up for review denial of defendant’s motion to suppress identification testimony and his subsequent conviction. Defendant argues that the pretrial photo array that led to his arrest was unduly suggestive because he appeared older than the fillers and was the only participant with salt-and-pepper hair. The Appellate Division’s finding that the array was not unduly suggestive is supported by the record, and therefore beyond our further review (People v Holley, 26 NY3d 514, 524 [2015]). Consequently, defendant’s contention that the photo array tainted the lineup after his arrest, to the extent this argument is preserved, is without merit. Additionally, defendant’s argument that he was denied the right to counsel is belied by the record (People v Caban, 5 NY3d 143, 152 [2005]), and he has failed to demonstrate the absence of any strategic or legitimate explanation for counsel’s silence and inaction at sentencing (People v Wright, 25 NY3d 769, 779 [2015]).

Chief Judge DiFiore and Judges Rivera, Abdus-Salaam, Stein, Fahey, Garcia and Wilson concur.

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, in a memorandum.  