Opinion
July 7, 1994
Appeal from the Supreme Court, New York County (Jerome Hornblass, J.).
Defendant's motion to suppress identification testimony was properly denied. Defendant was not entitled to be surrounded by lineup participants of nearly identical appearance (People v Chipp, 75 N.Y.2d 327, 336, cert denied 498 U.S. 833), and the record does not support an inference that the clothing worn by defendant at the lineup was sufficiently distinctive to render the lineup unfair.
Only two of defendant's present numerous challenges to the court's charge were preserved in any manner, and we find them without merit. First, the court adequately corrected its erroneous statement that it was equally "easy" to find defendant guilty or not guilty (see, People v. Douglas, 194 A.D.2d 408, 409, lv denied 82 N.Y.2d 717). Second, under the circumstances of the case, the charge adequately, if indirectly, conveyed the requested concept that prior inconsistent statements, if any, may be relevant to the reliability of identification testimony. In any event, even if the court's instructions on these subjects could be viewed as erroneous, we would view such errors as harmless in view of the overwhelming evidence of guilt (People v Crimmins, 36 N.Y.2d 230), including the distinctive appearance of the getaway car which linked defendant to the three incidents.
Defendant's remaining challenges to the court's charge are unpreserved and we decline to review them in the interest of justice. Finally, we perceive no abuse of sentencing discretion.
Concur — Sullivan, J.P., Carro, Ellerin, Asch and Tom, JJ.