| People v Brown |
| 2008 NY Slip Op 00512 [47 AD3d 826] |
| January 22, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Shawn Brown, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Jodi L. Mandel, andNicola 0R. Pilz of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Starkey, J.),rendered March 20, 2006, as amended March 22, 2006, convicting him of scheme to defraud inthe second degree, burglary in the second degree (three counts), burglary in the third degree,grand larceny in the fourth degree, petit larceny (two counts), attempted petit larceny, andcriminal impersonation in the second degree (four counts), upon a jury verdict, and imposingsentence. The appeal brings up for review the denial, after a hearing (Chun, J.), of that branch ofthe defendant's omnibus motion which was to suppress identification testimony.
Ordered that the judgment, as amended, is affirmed.
Contrary to the defendant's contention, the hearing court did not err in failing to suppresslineup identification testimony. While lineup participants should have the same general physicalcharacteristics as those of the suspect, there is no requirement that a defendant in a lineup besurrounded by individuals nearly identical in appearance (see People v Chipp, 75 NY2d327, 336 [1990], cert denied 498 US 833 [1990]; People v Snyder, 304 AD2d776, 777 [2003]; People v Pinckney, 220 AD2d 539 [1995]). The photographs taken ofthe two lineups reflect that the fillers sufficiently resembled the defendant. Moreover, anydifferences in weight and height were eliminated by having the participants in the lineup seated,holding a card with a number in front of them (see People v Shaw, 251 AD2d 686[1998]), and any differences in hair style were eliminated by having the participants wearidentical baseball caps (see People v Ortiz, 273 AD2d 482, 482-483 [2000]). Further, theage disparities between the [*2]defendant and the fillers were notso apparent as to single out the defendant (see People v Pinckney, 220 AD2d at 539;People v Gonzalez, 173 AD2d 48, 56-57 [1991]; People v Middleton, 128 AD2d554 [1987]).
The procedures followed by the police in the first lineup were proper (see People vCelestin, 231 AD2d 736 [1996]; People v Morales, 134 AD2d 292 [1987]).
Moreover, there is no need for an independent source hearing unless the identificationprocedures were unduly suggestive (seePeople v Wilson, 5 NY3d 778, 780 [2005]). In light of our determination, there is nomerit to the defendant's contention that the People were required to demonstrate an independentsource for the complainants' in-court identification. Ritter, J.P., Miller, Dillon and Angiolillo, JJ.,concur.