People v. Longshore

| N.Y. App. Div. | Apr 27, 1998

—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Clabby, J.), rendered October 11, 1995, convicting him of robbery in the first degree and robbery in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Flug, J.), 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 hearing court correctly concluded that the lineup from which he was identified was not impermissibly suggestive. There is no requirement that the participants in a lineup be nearly identical in appearance (see, People v Chipp, 75 NY2d 327, 336, cert denied 498 US 833). Despite certain age and weight disparities, the fillers were sufficiently similar to the defendant in appearance that he was not singled out for identification (see, People v Lopez, 209 AD2d 442; People v Baptiste, 201 AD2d 659). The height discrepancies were minimized by the fact that the participants were seated when viewed by the complainant (see, People v Garcia, 215 AD2d 584; People v Robert, 184 AD2d 597). Consequently, that branch of the defendant’s omnibus motion which was to suppress the lineup and in-court identification by the complainant was properly denied. O’Brien, J. P., Santucci, Altman and Friedmann, JJ., concur.