Opinion
May 15, 1995
Appeal from the Supreme Court, Kings County (Greenberg, J.).
Ordered that the judgment is affirmed.
The defendant's conviction is predicated on two distinct incidents, one involving an attempted robbery and the second involving a completed robbery. These crimes were joined in one indictment. The trial court did not improvidently exercise its discretion in denying the defendant's motion to sever the two counts. The crimes, committed within approximately one week of each other at separate locations in Brooklyn, were properly joined under CPL 200.20 (2) (c), and the defendant did not show good cause why separate trials should have been ordered (see, People v McNeil, 165 A.D.2d 882; People v Ndeye, 159 A.D.2d 397). Further, we note that the court instructed the jury to consider the evidence of each robbery separately (see, People v Jones, 210 A.D.2d 430; People v Hall, 169 A.D.2d 778).
There is no merit to the defendant's argument that the lineup was improper because the fillers were older than he. Lineup fillers need not be identical in physical characteristics to the defendant, but need only be reasonably similar in appearance (see, People v Robert, 184 A.D.2d 597). The hearing court, which examined the photographs of the lineup, found that the age differences between the fillers and the defendant were not apparent to the viewer and that the fillers bore a resemblance to the defendant. The hearing court found that the lineup was not suggestive, and its determination, under the circumstances, should not be disturbed on appeal (see, e.g., People v Prochilo, 41 N.Y.2d 759). Moreover, "`[t]he fact that * * * the photograph[s] of the lineup were apparently lost sometime after trial does not give rise to an inference that the * * * lineup was suggestive, since the hearing court had the opportunity to view the photographs and determined that they were not unduly suggestive'" (People v Robert, 184 A.D.2d 597, 599, supra; People v Gonzalez, 168 A.D.2d 283).
Finally, the defendant's sentence is not unduly harsh or excessive (see, People v Suitte, 90 A.D.2d 80). Miller, J.P., Pizzuto, Joy and Friedmann, JJ., concur.