Opinion
October 10, 1995
Appeal from the Supreme Court, Kings County (Kriendler, J.).
Ordered that the judgment and the amended judgment are affirmed.
We find no merit to the defendant's contention that the lineup in which he was identified was impermissibly suggestive because he was one of the youngest, shortest, and lightest individuals in the lineup. There is no requirement that a defendant in a lineup be surrounded by people nearly identical to him or her in appearance (see, People v. Brito, 179 A.D.2d 666). They need only be reasonably similar to the defendant in appearance (see, People v. Stephens, 143 A.D.2d 692, 694). Here, the height and weight disparities were diminished by the fact that the lineup was conducted with the participants sitting behind a table, which hid the participants' bodies from the waist down. Furthermore, the age disparities between the defendant and the fillers were not so apparent as to single out the defendant. As there were no appreciable disparities singling out the defendant, we conclude that the lineup was not suggestive (see, People v. Garcia, 215 A.D.2d 584).
The defendant further contends that a juror who overheard a derogatory remark made by one of his witnesses should have been dismissed. We disagree. The court conducted an inquiry of the juror in the presence of the attorneys and the defendant (see, People v. Buford, 69 N.Y.2d 290) to the satisfaction of both parties and determined that the juror was not grossly unqualified to serve on the jury. The court's assessment is afforded great weight because of its unique position to observe the juror, and we find no basis to disturb the court's determination (see, People v. Rodriguez, 71 N.Y.2d 214, 219; People v. Ingram, 213 A.D.2d 723; People v. Martin, 177 A.D.2d 715, 716). Moreover, the defendant's subsequent request for the court to conduct an inquiry of the other jurors as to whether they, too, heard the remark was untimely made. Thompson, J.P., Copertino, Hart and Goldstein, JJ., concur.