Opinion
May 15, 1989
Appeal from the County Court, Nassau County (Orenstein, J.).
Ordered that the judgment is affirmed.
The defendant claims that the lineup at which he was identified by the victim was unduly suggestive because 3 of the 4 fillers had mustaches and he was never described by the victim as having a mustache. Under the totality of the circumstances, we conclude that the lineup was not unduly suggestive (see, Stovall v Denno, 388 U.S. 293). There is no requirement that a defendant in a lineup must be surrounded by persons nearly identical to him in appearance (see, People v Mattocks, 133 A.D.2d 89, 90; People v Rodriguez, 124 A.D.2d 611, 612). The fillers in the defendant's lineup were of the defendant's age with similar complexions and haircuts. The lineup was not rendered suggestive merely because three of these men sported light mustaches.
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. 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 (CPL 470.15).
We have examined the defendant's other contentions and find them to be without merit (see, County Ct. v Allen, 442 U.S. 140, 155-163; People v McKenzie, 67 N.Y.2d 695, 696-697; cf., People v Crenshaw, 202 Misc. 179, 183). Mollen, P.J., Mangano, Kooper and Spatt, JJ., concur.