Opinion
December 14, 1987
Appeal from the Supreme Court, Queens County (Rotker, J.).
Ordered that the judgment is affirmed.
We agree with the hearing court that there is no basis for suppressing the testimony of certain witnesses concerning the identification of the defendant at a lineup. Assuming, arguendo, that the witnesses who viewed the lineup were told by a detective that a suspect had been arrested and that, since he had shaved his mustache, all of the participants in the lineup would have mustaches put on them, we find that such comments "[did] not render the ensuing lineup impermissibly suggestive" (People v Hammond, 131 A.D.2d 876, 877; see, People v Rodriguez, 64 N.Y.2d 738). Moreover, an examination of a photograph of the lineup, as well as the testimony of the witnesses who viewed the lineup, indicates that the use of a false mustache on the defendant, as well as another participant in the lineup (the other four participants having natural mustaches) did not present a substantial likelihood of irreparable misidentification (see, People v Grant, 130 A.D.2d 589, lv denied 70 N.Y.2d 647; People v Scott, 114 A.D.2d 915, lv denied 67 N.Y.2d 765; cf., People v Gaddy, 115 A.D.2d 658; People v Lloyd, 108 A.D.2d 873, affd 66 N.Y.2d 964; People v Sapp, 98 A.D.2d 784). Finally, we note that all of the participants, except one filler, were of similar age, height, build and general appearance.
In light of our determination concerning the lineup procedure, we need not reach the issue of whether there were independent bases for the witnesses' in-court identifications of the defendant. Thompson, J.P., Lawrence, Rubin and Spatt, JJ., concur.