Opinion
No. 2004-06449.
January 9, 2007.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Eng, J.), rendered July 19, 2004, convicting him of robbery in the first degree, burglary in the first degree, and petit larceny, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Aloise, J.), of that branch of the defendant's omnibus motion which was to suppress lineup identification evidence.
Lynn W. L. Fahey, New York, N.Y. (Erica Horwitz of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and William C. Milaccio of counsel; Maria Tihin on the brief), for respondent.
Before: Miller, J.P., Rivera Skelos and Lunn, JJ.
Ordered that the judgment is affirmed.
The defendant's contention that the lineup was unduly Suggestive because the fillers differed in age, skin tone, and facial hair is unpreserved for appellate review ( see CPL 470.05) and in any event, is without merit ( see People v Hylton, 2 AD3d 459). The lineup consisted of individuals who were reasonably similar in appearance to the defendant, and there is no requirement that the defendant be surrounded by individuals whose physical characteristics are nearly identical to his ( see People v Sumpter, 27 AD3d 590, lv denied 7 NY3d 795; People v Green, 14 AD3d 578).