Opinion
2210
November 18, 2003.
Judgment, Supreme Court, New York County (Michael Obus, J.), rendered October 23, 2000, convicting defendant, after a jury trial, of murder in the second degree, assault in the first degree, assault in the second degree (two counts), and criminal possession of a weapon in the second degree, and sentencing him, as a second violent felony offender, to an aggregate term of 25 years to life, unanimously affirmed.
David M. Cohn, for respondent.
Mark W. Zeno, for defendant-appellant.
Before: Saxe, J.P., Sullivan, Rosenberger, Friedman, Gonzalez, JJ.
Defendant's motion to suppress identification evidence was properly denied. The record, which includes the photographs of the lineup, supports the court's finding that the lineup participants were sufficiently similar in appearance so that defendant was not singled out for identification (see People v. Chipp, 75 N.Y.2d 327, 336, cert denied 498 U.S. 833). The lineup photographs show that age, height and weight differences among the lineup participants were barely noticeable.
Were we to find any error in the court's preclusion of certain misidentification evidence offered by defendant, we would find the error to be harmless because this evidence was cumulative of similar evidence that was received at trial and the evidence of defendant's guilt was overwhelming.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.