Opinion
October 7, 1992
Appeal from the Monroe County Court, Maloy, J.
Present — Callahan, J.P., Boomer, Pine, Fallon and Doerr, JJ.
Judgment unanimously affirmed. Memorandum: County Court properly denied defendant's motion to suppress his identification on the basis of an impermissibly suggestive photo array. The fact that the background of defendant's photograph differed in color from that of the others does not support the conclusion that the procedure was unduly suggestive where, as here, the surrounding photos all depicted men sharing physical attributes similar to defendant (see, People v Burns, 186 A.D.2d 1015 [decided herewith]; People v Floyd, 173 A.D.2d 211, 212, lv denied 78 N.Y.2d 966; People v Emmons, 123 A.D.2d 475, 476, lv denied 69 N.Y.2d 827).
Defendant has failed to preserve his contention that the trial court erred in its charge to the jury (see, CPL 470.05), and we decline to exercise our discretion to reach it in the interest of justice (see, CPL 470.15 [a]; People v Mason, 177 A.D.2d 988, lv denied 79 N.Y.2d 950). In any event, defendant's contention is without merit inasmuch as the court's whole charge conveyed the proper standard concerning the presumption of innocence and reasonable doubt (see, e.g., People v Canty, 60 N.Y.2d 830, 831-832). Defendant's request for a missing witness charge, made after summations and following completion of the court's charge, was untimely and properly denied (see, People v Gonzalez, 68 N.Y.2d 424, 427-428; People v Ruiz, 176 A.D.2d 683, 684, lv denied 79 N.Y.2d 952; People v Yopp, 142 A.D.2d 982, 983, lv denied 72 N.Y.2d 1051).