People v. Folk

233 A.D.2d 462, 650 N.Y.S.2d 272, 1996 N.Y. App. Div. LEXIS 11944

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 18, 1996
• Status: Published

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Carson, J.), rendered April 12, 1995, convicting him of robbery in the first degree, and grand larceny in the fourth 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 supress identification testimony.

Ordered that the judgment is affirmed.

The court did not err in failing to suppress identification testimony. While lineup participants should have the same general physical characteristics as those of the suspect, there is no requirement that a defendant be surrounded by individuals nearly identical in appearance to him (see, People v Chipp, 75 NY2d 327, 335, cert denied 498 US 833; People v Rodriguez, 64 NY2d 738, 740-741; People v Christenson, 188 AD2d 659, 660; People v Simmonds, 182 AD2d 650, 651; People v Rodriguez, 124 AD2d 611). Since the lineup participants were similar to the defendant in age, skin tone, and attire, their weight and any minor variations in their appearance did not render the lineup impermissibly suggestive or conducive to irreparable mistaken identification.

The sentence was not excessive (see, People v Suitte, 90 AD2d 80, 84).

The defendant’s remaining contentions are either unpreserved for appellate review or without merit. Ritter, J. P., Pizzuto, Friedmann and Luciano, JJ., concur.