Opinion
December 11, 1995
Appeal from the County Court, Nassau County (Wexner, J.).
Ordered that the judgment is affirmed.
In the early morning hours of February 15, 1991, the defendant and two codefendants were apprehended by the police after an attempted robbery. Several hours after his arrest, and while he was still in custody, the defendant became a suspect in the September 1990 unsolved shooting death of a Hofstra University assistant football coach. The defendant initially admitted to having some knowledge of the incident and eventually confessed to being with his two codefendants when one of his codefendants shot the victim.
We reject the defendant's contention that the delay in his arraignment was calculated to deprive him of his right to counsel (see, People v Ortlieb, 84 N.Y.2d 989; People v Lopez, 185 A.D.2d 285). Further, the totality of the circumstances supports the court's conclusion that the statements were voluntary. The defendant was repeatedly advised of his Miranda rights, which he waived. Contrary to his contention, the evidence establishes that he was not deprived of food or sleep (compare, People v Anderson, 42 N.Y.2d 35).
We also reject the defendant's contention that the lineup conducted by the police was unduly suggestive. An examination of the hearing testimony and the lineup photographs reveals that the stand-ins were reasonably similar in appearance to the defendant (see, People v Brennin, 184 A.D.2d 715; People v Diaz, 138 A.D.2d 728). There is no requirement that a defendant in a lineup be surrounded by individuals nearly identical in appearance (see, People v Chipp, 75 N.Y.2d 327, 336, cert denied 498 U.S. 833; People v Baptiste, 201 A.D.2d 659). Further, as the defendant never moved to reopen the Wade hearing, he cannot rely upon the trial testimony of one of the witnesses to challenge the court's suppression ruling (see, People v Diaz, 194 A.D.2d 688).
Viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt of murder in the second degree and attempted robbery in the first degree beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15).
The sentence imposed is not excessive (see, People v Suitte, 90 A.D.2d 80).
The defendant's remaining contention is without merit. Ritter, J.P., Altman, Friedmann and Florio, JJ., concur.