Opinion
September 30, 1994
Appeal from the Onondaga County Court, Mulroy, J.
Present — Denman, P.J., Lawton, Wesley, Doerr and Boehm, JJ.
Judgment unanimously affirmed. Memorandum: On appeal from a judgment convicting him of two counts of attempted robbery in the first degree, two counts of menacing in the second degree, and one count of criminal possession of a weapon in the fourth degree, defendant argues that the identification testimony of one of the complainants should have been suppressed because it was based upon suggestive pretrial identification procedures. Suppression was properly denied. The People met their initial burden of going forward to establish the lack of undue suggestiveness in the pretrial procedures and defendant failed to carry the ultimate burden of proving that the procedures were unduly suggestive (see, People v. Chipp, 75 N.Y.2d 327, 335, cert denied 498 U.S. 833). Defendant contends that it was suggestive for that complainant to have been shown two photo arrays, each containing his photograph. Successive photo arrays are not per se impermissibly suggestive (see, People v. Cordilione, 159 A.D.2d 864, 866, lv denied 76 N.Y.2d 786; People v. Sheirod, 124 A.D.2d 14, 18-19, lv denied 70 N.Y.2d 656). Notably, different photographs of defendant were used in the two arrays and defendant was the only person identified from either (see, People v. Cordilione, supra, at 866-867; see also, People v Malphurs, 111 A.D.2d 266, 268, lv denied 66 N.Y.2d 616).
Defendant argues that the second array was suggestive because, in his photograph, he was wearing a dark wind-breaker that was substantially similar to the jacket described by the complainant as having been worn by the robber. Although defendant is depicted wearing a dark jacket, two other men in the array are wearing dark jackets (see, People v. Landor, 92 A.D.2d 625). Moreover, the jacket is not so distinctive as to single out defendant as the suspect (cf., People v. Lloyd, 108 A.D.2d 873, affd 66 N.Y.2d 964). Even if it were concluded that the array was suggestive, the complainant's identification of defendant from a lineup five months later was sufficiently attenuated in time to nullify any possible taint (see, People v. Cordilione, supra, at 867; People v. Smith, 154 A.D.2d 633, lv denied 75 N.Y.2d 776; People v. Mullen, 143 A.D.2d 849, 850, lv denied 73 N.Y.2d 924).
Finally, defendant argues that the lineup was suggestive because he was the thinnest man in the lineup and the complainant had described the robber as having a thin build. "There is no requirement, however, that a defendant in a lineup be surrounded by people nearly identical in appearance" (People v. Chipp, supra, at 336). The photograph of the lineup reveals five males similar in age, height and body type (see, People v. Moore, 193 A.D.2d 627, 627-628). The lineup did not raise "a substantial likelihood that the defendant would be singled out for identification" (People v. Chipp, supra, at 336; see also, People v. Mullen, supra; People v. Grant, 130 A.D.2d 589, lv denied 70 N.Y.2d 647; People v. Coleman, 114 A.D.2d 906).