Opinion
June 11, 1996
Appeal from the Supreme Court, New York County (Marcy Kahn, J.).
The fill-ins selected for defendant's lineup were not so dissimilar in appearance to defendant as to make her stand out ( see, People v. Chipp, 75 N.Y.2d 327, 336, cert denied 498 U.S. 833). Although three of the four fill-ins, ages 42, 45 and 47, were older than defendant, who was 36 at the time, and only one was her age, all appeared to be roughly the same age, and, indeed, the complainant had described the assailant to the police as "in her forties" ( see, People v. Gonzalez, 173 A.D.2d 48, 56-57, lv denied 79 N.Y.2d 1001). The minor height and weight differentials were minimized by having the participants sit ( see, People v. Tyler, 199 A.D.2d 102, lv denied 82 N.Y.2d 931). And, although the fill-ins' hairstyles differed from defendant's, that fact is not significant where the complainant had merely described the robber's hair as "short", and defendant's hairstyle was not particularly uncommon or unusual ( see, People v. Gega, 188 A.D.2d 305, 306, lv denied 81 N.Y.2d 886).
Concur — Milonas, J.P., Rosenberger, Wallach, Ross and Tom, JJ.