| People v Marshall |
| 2008 NY Slip Op 04545 [51 AD3d 821] |
| May 13, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v TravisMarshall, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Jodi L. Mandel ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Goldberg,J.), rendered September 29, 2006, convicting him of attempted robbery in the third degree andattempted assault in the third degree, after a nonjury trial, and imposing sentence. The appealbrings up for review the denial, after a hearing, of that branch of the defendant's omnibus motionwhich was to suppress identification testimony.
Ordered that the judgment is affirmed.
The defendant's contention that the lineup was unduly suggestive because of the weightdifferences between him and the other lineup participants is unpreserved for appellate review(see CPL 470.05 [2]).
Contrary to the People's contention, the defendant's remaining claims with respect to thealleged suggestiveness of the lineup are preserved for appellate review because they were"expressly decided" by the Supreme Court (CPL 470.05 [2]; see People v Sellers, 168AD2d 583 [1990]). The Supreme Court properly declined to suppress lineup identificationevidence. While lineup participants should share the same general physical characteristics, thereis no requirement that a defendant in a lineup be surrounded by persons who are nearly identicalin appearance (see People v Kirby,34 AD3d 695 [2006]). Here, the photographs taken at the lineup demonstrate that theparticipants were similar to the defendant in skin tone, attire, hair color, and age, and that minordifferences in [*2]height did not render the lineup undulysuggestive (see People v Johnson,33 AD3d 939, 940 [2006]). Any height differences were minimized by the fact that theparticipants were seated (see People vVillacreses, 12 AD3d 624 [2004]). The defendant's unique hairstyle was not part of thecomplainant's description of the perpetrator (see People v Jordan, 44 AD3d 875, 876 [2007]), and did not renderthe lineup unduly suggestive (see Peoplev Diggs, 19 AD3d 1098, 1099 [2005]; People v Briggs, 285 AD2d 514 [2001]).Moreover, the fact that the defendant wore the same shirt in the photograph array as he didduring the lineup did not render the lineup unduly suggestive because the clothing did not figureprominently in the complainant's description and the evidence demonstrated that the complainantconcentrated on his face rather than on his clothing (see People v Jordan, 44 AD3d 875, 876 [2007]; People vSaunders, 306 AD2d 502, 502-503 [2003]).
In light of our determination, there is no merit to the defendant's contention that the Peoplewere required to demonstrate an independent source for the complainant's in-court identification(see People v Brown, 47 AD3d826 [2008]). Lifson, J.P., Ritter, Dillon and Leventhal, JJ., concur.