People v. BallingerPeople v. Ballinger
Contrary to the defendant‘s contention, the record supports the hearing court‘s conclusion that the pretrial lineup was not unduly suggestive. “There is no requirement that a defendant in a lineup be surrounded by persons who are nearly identical in appearance” (People v Nieves, 183 AD2d 854, 856 [1992]; see People v Chipp, 75 NY2d 327, 336 [1990], cert denied 498 US 833 [1990]; People v Herndon, 47 AD3d 837 [2008]). Here, the lineup participants were similar to the defendant in appearance, and any minor differences in their physical characteristics or appearance were insufficient to create a substantial likelihood of misidentification (see People v Herndon, 47 AD3d at 837-838; People v Cheung, 255 AD2d 102 [1998]; People v Pinckney, 220 AD2d 539 [1995]; People v Nieves, 183 AD2d at 856).
The defendant‘s contention that indictment No. 2478/05, later consolidated with indictment No. 8191/05, should have been dismissed is not reviewable since the judgment of conviction was based upon legally sufficient trial evidence (see People v Hayes, 44 AD3d 683 [2007]; People v Ragland, 36 AD3d 943, 944 [2007], cert denied 552 US —, 128 S Ct 1880 [2008]; People v Nealy, 32 AD3d 400, 402 [2006]). Furthermore, the hearing court properly found that a witness‘s identification of the defendant at a photographic array furnished probable cause for his arrest (see People v Walton, 309 AD2d 956, 957 [2003]; People v Soberanis, 289 AD2d 343, 344 [2001]).
To the extent that the defendant‘s claims of ineffective assistance of counsel are based upon matter dehors the record, they may not be reviewed on direct appeal (see People v Sabatino, 41 AD3d 871 [2007]; People v Williams, 41 AD3d 517, 518 [2007]). Insofar as we are able to review these claims, defense counsel provided the defendant with meaningful representation (see People v Taylor, 1 NY3d 174, 176 [2003]; People v Henry, 95 NY2d 563, 565-566 [2000]; People v Benevento, 91 NY2d 708, 712 [1998]; see also People v Sabatino, 41 AD3d at 871).
The defendant‘s remaining contentions are without merit.
Skelos, J.P., Fisher, Miller and Eng, JJ., concur.