Opinion
January 22, 1991
Appeal from the Supreme Court, New York County, Murray Mogel, J., James Leff, J.
We find no merit to defendant's claim that his right to competent counsel was violated. Defendant's second attorney failed to challenge the lineup identification on the ground that it was inherently suggestive, but instead argued that the lineup was tainted by a photographic array made available earlier to the witness. Defendant has not demonstrated that counsel's decision was inappropriate. (People v Rivera, 71 N.Y.2d 705.) Since defendant's first attorney (a colleague of the second) was present at the lineup, it is unlikely that the makeup of the lineup was prejudicial to defendant's rights (cf., People v Lopez, 123 A.D.2d 360, lv denied 68 N.Y.2d 915).
Defendant also argues that the array was suggestive because of his receding hairline. The photographs that filled out the array did not have to depict persons nearly identical in appearance. (People v Chipp, 75 N.Y.2d 327, cert denied ___ US ___, 111 S Ct 99.) Moreover, the lineup was conducted more than four weeks after the photographic array was displayed, rendering prejudice unlikely. (Cf., People v Thomas, 161 A.D.2d 543, lv denied 76 N.Y.2d 866.)
Concur — Murphy, P.J., Carro, Wallach, Kupferman and Asch, JJ.