Opinion
July 25, 1988
Appeal from the Supreme Court, Kings County (Hutcherson, J.).
Ordered that the judgment is affirmed.
The defendant's contention that the complainant's identification testimony should have been suppressed because he looked dissimilar from the lineup fill-ins in certain respects is without merit. "While it is well established that the participants in a lineup should have the same general physical characteristics (see, Foster v. California, 394 U.S. 440), there is no requirement that a defendant in a lineup should be surrounded by individuals nearly identical in appearance (see, People v Rodriguez, 124 A.D.2d 611)" (People v. Burns, 138 A.D.2d 614, 615). The fill-ins used in the lineup conducted at bar were sufficiently similar such that no characteristic or visual clue would have caused the viewer to select the defendant as the perpetrator (see, People v. Mason, 123 A.D.2d 720, lv denied 69 N.Y.2d 714).
The trial court did not err in permitting the prosecutor to cross-examine the alibi witnesses regarding their failure to come forward to law enforcement officials upon learning of the defendant's arrest. The prosecutor laid a proper foundation for such questioning (see, People v. Dawson, 50 N.Y.2d 311), and did not improperly indicate that the witnesses were obligated to come forward, and the court instructed the jury as to the limited probative value of the witnesses' failure to come forward. The fact that the witnesses did speak with the defendant's attorney within a month after the defendant's arrest does not serve to preclude this inquiry, as the witnesses testified that the attorney did not advise them not to speak with law enforcement officials (see, People v. Dawson, supra). The reasonableness of their explanations that they thought that providing the defendant's attorney with the exculpatory information was sufficient is a factor for the trier of fact to consider in determining whether to credit or discredit the witnesses (see, People v. Dawson, supra). Finally, the court's failure to ascertain outside the presence of the jury the reason why one of the witnesses did not come forward to law enforcement officials does not require reversal under the circumstances present at bar (see, People v. Campbell, 123 A.D.2d 437, lv granted 69 N.Y.2d 878, revd on other grounds 70 N.Y.2d 724).
The defendant's remaining contentions are either unpreserved for appellate review, without merit, or do not warrant reversal. Kunzeman, J.P., Weinstein, Eiber and Spatt, JJ., concur.