Opinion
Submitted May 4, 1999
June 14, 1999
Appeal by the defendant from a judgment of the Supreme Court, Kings County (McKay, J.), rendered April 17, 1996, convicting him of 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 certain identification evidence.
Robert J. Ellis, Jr., New York, N.Y., for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Roseann B. MacKechnie and Michael Gore of counsel), for respondent.
WILLIAM C. THOMPSON, J.P., THOMAS R. SULLIVAN, MYRIAM J. ALTMAN, ANITA R. FLORIO, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
The hearing court properly denied suppression of testimony relating to the lineup identification procedure. While it is true that one of the fillers had a skin tone lighter than that of the defendant, the lineup was otherwise comprised of individuals with similar characteristics. "There is no requirement that a defendant be surrounded by individuals nearly identical in appearance during identification procedures" ( People v. Leka, 209 A.D.2d 723, 724). Moreover, the identification procedure was conducted in a nonsuggestive manner.
Viewing the evidence in the light most favorable to the prosecution ( see, People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence ( see, CPL 470.15).
The sentence imposed was not excessive ( see, People v. Suitte, 90 A.D.2d 80).
The defendant's remaining contentions are either unpreserved for appellate review or without merit ( see, People v. Ladd, 89 N.Y.2d 893; People v. Sutton, 209 A.D.2d 456).