Opinion
July 9, 1990
Appeal from the Supreme Court, Kings County (Alfano, J.).
Ordered that the judgment is affirmed.
Within approximately 90 minutes after committing a robbery of a fast-food restaurant in Brooklyn, the defendant was seen in another nearby fast-food restaurant by a witness who had observed him fleeing from the first restaurant. This witness informed police of his observations and a victim of the robbery was transported to the second restaurant. Looking inside from a police car, the victim identified the defendant as one of the robbers, following which the defendant was placed under arrest.
Contrary to the defendant's contentions, this did not constitute an unduly suggestive showup identification (see, People v. Ghee, 139 A.D.2d 663). Indeed, the defendant was identified without prompting (see, People v. Evans, 123 A.D.2d 328) by a victim who observed him while he was still at large (see, People v. Mack, 116 A.D.2d 593). Moreover, the defendant was seen in the restaurant surrounded by several other individuals, so that the identification procedure was more in the nature of an impromptu on-the-scene lineup than a potentially objectionable one-on-one police arranged showup (see, People v. Dolphin, 77 A.D.2d 571).
Similarly, the identification testimony was not subject to suppression as a result of unduly suggestive lineups. Examining the Wade hearing testimony, which is the only testimony to be considered in reviewing the propriety of the suppression court's ruling (see, People v. Lott, 143 A.D.2d 686; People v Anderson, 127 A.D.2d 774), we find that the lineup procedures employed were not improper. Although the defendant was exhibited wearing the clothing described by eyewitnesses, at least two other lineup participants were similarly attired so that he did not stand out from the rest (see, People v. Diaz, 138 A.D.2d 728; compare, People v. Lloyd, 108 A.D.2d 873, affd 66 N.Y.2d 964). Moreover, that one witness recalled that the defendant's lips appeared swollen did not render the lineups unduly suggestive (see, People v. Phillips, 145 A.D.2d 656; People v. Williams, 118 A.D.2d 610). Rather, we are persuaded that the eyewitnesses who identified the defendant in lineups did so under circumstances which did not give rise to a significant likelihood of misidentification.
We have reviewed the defendant's remaining contentions, including those raised in his supplemental pro se brief, and find them to be without merit. Thompson, J.P., Rubin, Rosenblatt and Miller, JJ., concur.