Opinion
November 7, 1994
Appeal from the Supreme Court, Queens County (Golia, J.).
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the lineup was not per se unduly suggestive because the complainant, unbeknownst to the police, recognized three of the five fillers as persons he had seen in the neighborhood (see, People v. Green, 143 A.D.2d 768; People v. Johnson, 122 A.D.2d 812; People v. Norris, 122 A.D.2d 82). Instead, where issues of undue suggestiveness arise, the court looks to the totality of the circumstances surrounding the lineup (see, People v. Green, supra, at 769; People v Rodriguez, 124 A.D.2d 611, 612; People v. Johnson, supra, at 812; People v. Norris, supra, at 83-84). A review of the record indicates that the lineup was properly conducted in all respects.
The defendant failed to preserve for appellate review his objection to that portion of the prosecutor's summation which commented on the lineup procedure (see, People v. Sweeney, 161 A.D.2d 613; People v. Acevedo, 156 A.D.2d 569). In any event, we find that the prosecutor's comments were a proper response to the defense counsel's summation (see, People v. Galloway, 54 N.Y.2d 396; People v. Sweeney, supra, at 613; People v. Acevedo, supra, at 569-570; People v. Collins, 136 A.D.2d 722). Lawrence, J.P., O'Brien, Joy and Altman, JJ., concur.