Opinion
2002-03006.
December 29, 2003.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (McKay, J.), rendered March 11, 2002, convicting him of robbery in the first degree and robbery in the second degree (two counts), upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Kron, J.), of that branch of the defendant's omnibus motion which was to suppress identification testimony.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Sharon Y. Brodt, and James L. Iannone of counsel), for respondent.
Andrew C. Fine, New York, N.Y. (Paul Wiener of Counsel), for appellant.
Before: DANIEL F. LUCIANO and REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the hearing court properly denied that branch of his omnibus motion which was 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 in a lineup be surrounded by individuals nearly identical in appearance ( see People v. Chipp, 75 N.Y.2d 327, 336, cert denied 498 U.S. 833). Any minor variations between the weight, age, or features of the participants and those of the defendant in this case did not render the lineup impermissibly suggestive or conducive to irreparable mistaken identification ( see People v. Shaw, 251 A.D.2d 686). Any significant discrepancies in height were eliminated since the participants in the lineup were seated ( see People v. Bolt, 295 A.D.2d 357, 358).
The defendant's remaining contentions are without merit.
FLORIO, J.P., SMITH, LUCIANO and RIVERA, JJ., concur.