| People v Stewart |
| 2008 NY Slip Op 04553 [51 AD3d 826] |
| May 13, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v PaulStewart, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Ellen C.Abbot, and Suzanne H. Sullivan of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Hollie, J.),rendered June 22, 2006, convicting him of robbery in the first degree (two counts) and criminalpossession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence. Theappeal brings up for review the denial, after a hearing (Spires, J.), of that branch of thedefendant's omnibus motion which was to suppress identification testimony.
Ordered that the judgment is affirmed.
The defendant argues on appeal that the lineup identification testimony should have beensuppressed on the ground that his mustache was thicker and darker than the mustaches of certainother people in the lineup, and caused him to stand out. The determination of the hearing courtthat the lineup identification procedure was not unduly suggestive should not be disturbed unlessit is unsupported by the record (see People v Guzman, 220 AD2d 614, 615 [1995]). Here,any differences in the facial hair of the people in the lineup does not render the lineup undulysuggestive, particularly as the defendant and all of the other people were similar in skin coloring,arrayed at the same height, appear to have been of similar builds and ages, and wore similarclothing and caps (see People v Evans, 202 AD2d 377 [1994]).
The defendant was not denied the effective assistance of counsel (see People v Baldi,54 NY2d 137 [1981]; People vDolan, 2 AD3d 745, 747 [2003]).
The defendant's arguments regarding the prosecutor's summation, to the extent it [*2]involved comments about defense counsel's cross-examination ofthe complainant concerning the weapon used in the robbery, appealing to jurors' sympathies, theages and arrangement of lineup participants, and the alleged bolstering of identificationtestimony, are unpreserved for appellate review. Defense counsel either failed to object, or didnot request further relief after objections were sustained and curative instructions given(see CPL 470.05 [2]; People vSalnave, 41 AD3d 872, 874 [2007]). The defendant's remaining arguments regarding theprosecutor's summation, which are preserved for appellate review, are without merit, particularlygiven the broad bounds of rhetorical comment permissible in closing arguments (see People vGalloway, 54 NY2d 396, 399 [1981]). Florio, J.P., Miller, Dillon and McCarthy, JJ., concur.