Opinion
December 16, 1991
Appeal from the Supreme Court, Kings County (Marrus, J.).
Ordered that the judgment is affirmed.
Despite the unavailability of the lineup photograph, we find that there was ample evidence to support the hearing court's determination that the defendant's lineup was not unduly suggestive. Moreover, it is not required that lineup fillers possess physical characteristics identical to those of the defendant (see, People v Meatley, 162 A.D.2d 721). Similarly, it was not unduly suggestive for the police merely to inform the complainant, prior to her viewing the lineup, that they had picked up a suspect (see, People v Hernandez, 122 A.D.2d 856).
The defendant's challenges to some portions of the prosecutor's summation are unpreserved for appellate review (see, CPL 470.05; People v Udzinski, 146 A.D.2d 245). To the extent that the challenges to the remarks of the prosecutor in summation are preserved for our review, we conclude that the prosecutor's statements constituted fair comment on the evidence adduced at trial and did not exceed the bounds of permissible rhetoric (see, People v Ayala, 165 A.D.2d 878; People v James, 146 A.D.2d 712).
The defendant's sentence was not unduly harsh or excessive (see, People v Suitte, 90 A.D.2d 80). Kunzeman, J.P., Sullivan, Eiber and Ritter, JJ., concur.