Opinion
June 8, 1992
Appeal from the Supreme Court, Kings County (Lombardo, J.).
Ordered that the judgment is affirmed.
The defendant argues that both the lineup and in-court identification should have been suppressed. He contends that the lineup identification by a witness was tainted by a suggestive photographic array. Specifically, he claims that the darker, "almost black" background in his photograph, made it stand out from the others.
A photographic display is suggestive where some characteristic of one picture draws the viewer's attention to it, indicating that the police have made a particular selection (see, People v Cherry, 150 A.D.2d 475; People v. Dubois, 140 A.D.2d 619, 622; People v. Shea, 54 A.D.2d 722; People v. Emmons, 123 A.D.2d 475, 476). An examination of the six-picture array employed in this case demonstrates that it was not suggestive. Although it may have been better practice to have taken the defendant's picture against a lighter background, it cannot be said that this difference tainted the photographic array. The defendant's appearance and pose did not differ greatly from those of the men in the other photographs. Each man, including the defendant, was close in age, had a similar hairstyle (a short afro), skin tone, and facial characteristics (see, People v. Floyd, 173 A.D.2d 211; People v. Emmons, supra, at 476; Matter of Christopher E., 163 A.D.2d 385).
Moreover, even if the photographic identification had been suggestive, it would not have tainted the subsequent lineup identification. Significantly, the lineup was held approximately 19 months thereafter and was thus sufficiently attenuated in time to nullify any possible taint (see, People v. Sutherland, 157 A.D.2d 681; People v. Hernandez, 143 A.D.2d 842; People v. Dubois, supra, at 622; People v. Smith, 140 A.D.2d 647).
The defendant also argues that evidence of the lineup identification should have been suppressed because differences with respect to the height of the six lineup participants rendered the procedure unduly suggestive. While it is well established that the participants in a lineup should have the same general physical characteristics (see, People v. Burns, 138 A.D.2d 614, 615), there is no requirement that a defendant in a lineup be surrounded by individuals nearly identical in appearance (see, People v. Henderson, 170 A.D.2d 532; People v Jackson, 151 A.D.2d 694). The testimony in the record establishes that the defendant was five feet nine inches tall, and the other participants were five feet eight inches, five feet nine inches, six feet one inch, six feet one inch, and six feet three inches tall, respectively. We find that any discrepancy in height was minimized by the fact that the witness viewed the lineup participants while they were seated (see, People v. Curtin, 115 A.D.2d 753; People v. Jackson, supra).
The defendant's claim that the People's failure to preserve the photographs of the lineup gives rise to an inference that the lineup was suggestive is without merit. "The fact that * * * the photograph[s] of the lineup were apparently lost sometime after trial does not give rise to an inference that the * * * lineup was suggestive, since the hearing court had the opportunity to view the photographs and determined that they were not unduly suggestive" (People v. Gonzalez, 168 A.D.2d 283; see, People v Eleby, 137 A.D.2d 707, 708).
The defendant's remaining contentions are either unpreserved for appellate review or without merit. Harwood, J.P., Rosenblatt, Ritter and Pizzuto, JJ., concur.