228 A.D.2d 244 | N.Y. App. Div. | 1996
The fill-ins selected for defendant’s lineup were not so dissimilar in appearance to defendant as to make her stand out (see, People v Chipp, 75 NY2d 327, 336, cert denied 498 US 833). Although three of the four fill-ins, ages 42, 45 and 47, were older than defendant, who was 36 at the time, and only one was her age, all appeared to be roughly the same age, and, indeed, the complainant had described the assailant to the police as "in her forties” (see, People v Gonzalez, 173 AD2d 48, 56-57, lv denied 79 NY2d 1001). The minor height and weight differentials were minimized by having the participants sit (see, People v Tyler, 199 AD2d 102, lv denied 82 NY2d 931). And, although the fill-ins’ hairstyles differed from defendant’s, that fact is not significant where the complainant had merely described the robber’s hair as "short”, and defendant’s hairstyle was not particularly uncommon or unusual (see, People v Gega, 188 AD2d 305, 306, lv denied 81 NY2d 886). Concur—Milonas, J. P., Rosenberger, Wallach, Ross and Tom, JJ.
