Opinion
December 28, 1992
Appeal from the Supreme Court, Kings County (Moskowitz, J.).
Ordered that the judgment is affirmed.
Contrary to the defendant's present contention, his right to be present at all material stages of the trial was not violated when, in his absence, the court conducted a brief in camera inquiry regarding a sworn juror's possible presence at the arrest scene (see, People v Mullen, 44 N.Y.2d 1; see also, People v Torres, 80 N.Y.2d 944). The Court of Appeals has observed that such "in camera questioning of a juror [is] not a `material part' of a trial requiring the personal presence of defendant" (People v Darby, 75 N.Y.2d 449, 453, quoting People v Mullen, supra, at 6). Therefore, we find that the indispensable presence of defense counsel at the inquiry sufficiently safeguarded the defendant's due process right to a fair and just hearing on this issue (see, People v Darby, supra, at 453; People v Mullen, supra, at 5). Indeed, it cannot be stated in this case that the defendant's presence at the inquiry would have borne any relation to his ability to defend against the charges (see, Snyder v Massachusetts, 291 U.S. 97; People v Bumbury, 186 A.D.2d 671).
Similarly unavailing is the defendant's claim that the court erred in failing to suppress identification testimony and in failing to afford him the opportunity to examine the identifying witnesses at the Wade hearing. While lineup participants should have the same general physical characteristics as those of the suspect (see, Foster v California, 394 U.S. 440; People v Simmonds, 182 A.D.2d 650), there is no requirement that a defendant be surrounded by individuals of a nearly identical resemblance (see, People v Chipp, 75 N.Y.2d 327, cert denied 498 U.S. 833; People v Rodriguez, 124 A.D.2d 611). In this case, where the record establishes that the lineup participants wore headgear to cover their hair and were similar in age, skin tone, and dress, we find that the variation in their height did not render the lineup impermissibly suggestive or conducive to irreparable mistaken identification (see, People v Simmonds, supra; People v Burns, 138 A.D.2d 614). Furthermore, the defendant did not possess an unqualified right to examine the identifying witnesses at the Wade hearing (see, People v Chipp, supra; People v Allen, 163 A.D.2d 396). In this regard, we are not convinced by the defendant's argument that the potential testimony of the eyewitnesses might have suggested that the varied heights of the lineup participants rendered the procedure unduly suggestive. The court already had a photograph of the lineup before it, and the testimony of eyewitnesses on this point would have been cumulative. Accordingly, the court had the discretion to exclude such testimony and to refuse to permit the defendant to call the eyewitnesses at the hearing (see, People v Chipp, supra, at 339), and we discern no improvident exercise of that discretion in this case.
Finally, the sentence imposed is neither unduly harsh nor excessive (see, People v Suitte, 90 A.D.2d 80). Sullivan, J.P., Balletta, Eiber and Santucci, JJ., concur.