People v. Clark

236 A.D.2d 620, 654 N.Y.S.2d 665, 1997 N.Y. App. Div. LEXIS 1503

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 24, 1997
• Status: Published

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Hanophy, J.), rendered March 23, 1995, convicting him of murder in the second degree (two counts) and robbery in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress identification testimony.

Ordered that the judgment is affirmed.

Contrary to defendant’s contention, the pretrial identification procedures were not unduly suggestive. Fillers in pretrial lineups need not be nearly identical to the defendant in appearance (see, People v Chipp, 75 NY2d 327, cert denied 498 US 833). Upon our review of photographs of the lineup, we find that the participants looked sufficiently similar to the defendant (see, People v Hoehne, 203 AD2d 480). While one eyewitness was improperly shown a single photograph of the defendant, there was an independent source for that eyewitness’s in-court identification (see, People v Paul, 222 AD2d 706; People v Hyatt, 162 AD2d 713).

The defendant’s remaining contention is unpreserved for appellate review and is, in any event, without merit. O’Brien, J. P., Thompson, Joy and Goldstein, JJ., concur.