Opinion
July 18, 1990
Appeal from the County Court, Westchester County (West, J.).
Ordered that the judgment is affirmed.
Contrary to the defendant's contentions, the hearing court properly declined to suppress the complainant's identification testimony on the grounds that the photographic array and lineup procedures were unduly suggestive. Although two lineup procedures were employed by the police, we discern no undue suggestiveness in either procedure. As we have previously observed, "[t]he issue involved in ascertaining the validity of a lineup identification concerns `undue suggestiveness' which is determined by considering the totality of the circumstances surrounding the lineup" (People v. Rodriguez, 124 A.D.2d 611, 612; see also, People v. Jackson, 145 A.D.2d 646; People v. Phillips, 145 A.D.2d 656; People v. Gairy, 116 A.D.2d 733). Significantly, there is no requirement that a defendant in a lineup be surrounded by individuals nearly identical in appearance (see, People v Wiley, 137 A.D.2d 735). So long as there is a sufficient degree of resemblance between the other individuals in the lineup and the defendant, the constitutional proscription against unduly suggestive identification procedures will be satisfied (see, People v. Thompson, 143 A.D.2d 858; People v. Accoo, 126 A.D.2d 730).
Upon our review of the lineup photographs, we find, contrary to the defendant's contentions, that the other individual fillers and the defendant were sufficiently similar in age, weight, build, hairstyle and skin tone (see, People v. Phillips, supra). Additionally, the mere fact that the defendant was the only person wearing an "Hawaiian shirt" in the first lineup, did not serve to draw the viewer's attention to the defendant or to indicate that the police had made a particular selection (cf., People v. Tedesco, 143 A.D.2d 155, 156). We note, further, that the hearing court's finding of an independent source is amply supported by the record, since the testimony adduced at the hearing established that the crime took place over a period of at least 30 minutes, during which time the complainant was able to observe the defendant at close range (see, e.g., People v. Callace, 143 A.D.2d 1027).
Viewing the evidence in the light most favorable to the People (see, People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15). Brown, J.P., Kooper, Rubin and Harwood, JJ., concur.