Opinion
March 7, 1988
Appeal from the Supreme Court, Kings County (Cohen, J.).
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the prosecution's failure to preserve the photographic array from which the complaining witnesses identified the defendant did not render the identification impermissibly suggestive where the array contained some 50 photos which had not been compiled specifically for this case. Ordinarily, it is incumbent upon the People to preserve a photo array so that a court may determine whether the procedure employed was unduly suggestive (see, People v. Jerome, 111 A.D.2d 874, lv denied 66 N.Y.2d 764; People v. Barber, 96 A.D.2d 1112; People v. Foti, 83 A.D.2d 641). However, it is by now well established that when a photographic identification procedure involves showing a witness a preexisting file consisting of a large number of photographs, the "sheer volume and scope of [the] procedure militates against the presence of suggestiveness" (People v. Jerome, supra, at 874; see also, People v. Ludwigsen, 128 A.D.2d 810, lv denied 69 N.Y.2d 1006).
Furthermore, the record supports the hearing court's conclusion that the pretrial lineup procedure was not unduly suggestive (see, People v. Rodriguez, 64 N.Y.2d 738). There is no requirement that a defendant in a lineup must be surrounded by people nearly identical in appearance (see, United States v. Reid, 517 F.2d 953; People v. Mattocks, 133 A.D.2d 89, lv denied 70 N.Y.2d 801; People v. Rodriguez, 124 A.D.2d 611), and, in the instant case, an examination of the lineup photograph reveals no discernable differences in the age, height, skin tone, or body type of the defendant and 4 of the 5 stand-ins of such a nature as to create a substantial likelihood that the defendant would be singled out for identification (see, Neil v. Biggers, 409 U.S. 188).
We have reviewed the defendant's remaining contentions, including those raised in his pro se supplemental brief, and find them to be without merit. Mangano, J.P., Lawrence, Spatt and Balletta, JJ., concur.