People v. Keller

242 A.D.2d 735, 664 N.Y.S.2d 940

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Gary, J.), rendered October 27, 1995, convicting him of robbery in the second degree, upon a jury verdict, and imposing sentence. This 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 the defendant’s contention, the record supports the determination of the hearing court that the photo array and pretrial lineup were not suggestive. While the fillers used in a lineup must be sufficiently similar to the defendant so that no characteristic or visual clue would orient the viewer towards the defendant as a perpetrator of the crimes charged (see, People v Lundquist, 151 AD2d 505, 506), there is no requirement that a defendant in a lineup be accompanied by individuals nearly identical in appearance (see, People v Chipp, 75 NY2d 327, cert denied 498 US 833; People v Rotunno, 159 AD2d 601; People v Diaz, 138 AD2d 728). Examination of the photo array and the lineup photograph confirms the hearing testimony that the fillers were sufficiently similar to the defendant in age, weight and build, skin tone, hair style, and dress (see, People v Phillips, 145 AD2d 656).

The defendant’s sentence was not excessive (see, People v Suitte, 90 AD2d 80). Mangano, P. J., Copertino, Altman and Goldstein, JJ., concur.