| People v Ballinger |
| 2009 NY Slip Op 04076 [62 AD3d 895] |
| May 19, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v GaryBallinger, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Sholom J.Twersky of counsel; Rami A. Yomtov on the brief), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (McKay, J.),rendered July 10, 2006, convicting him of burglary in the third degree and attempted burglary inthe third degree, upon a jury verdict, and imposing sentence. The appeal brings up for review thedenial, after a hearing, of that branch of the defendant's omnibus motion which was to suppressidentification testimony.
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the record supports the hearing court's conclusionthat the pretrial lineup was not unduly suggestive. "There is no requirement that a defendant in alineup be surrounded by persons who are nearly identical in appearance" (People v Nieves,183 AD2d 854, 856 [1992]; see People v Chipp, 75 NY2d 327, 336 [1990], certdenied 498 US 833 [1990]; Peoplev Herndon, 47 AD3d 837 [2008]). Here, the lineup participants were similar to thedefendant in appearance, and any minor differences in their physical characteristics orappearance were insufficient to create a substantial likelihood of misidentification (seePeople v Herndon, 47 AD3d at 837-838; People v Cheung, 255 AD2d 102 [1998];People v Pinckney, 220 AD2d 539 [1995]; People v Nieves, 183 AD2d at 856).
The defendant's contention that indictment No. 2478/05, later consolidated with indictment[*2]No. 8191/05, should have been dismissed is not reviewablesince the judgment of conviction was based upon legally sufficient trial evidence (see People v Hayes, 44 AD3d 683[2007]; People v Ragland, 36 AD3d943, 944 [2007], cert denied 552 US — , 128 S Ct 1880 [2008]; People v Nealy, 32 AD3d 400,402 [2006]). Furthermore, the hearing court properly found that a witness's identification of thedefendant at a photographic array furnished probable cause for his arrest (see People vWalton, 309 AD2d 956, 957 [2003]; People v Soberanis, 289 AD2d 343, 344[2001]).
To the extent that the defendant's claims of ineffective assistance of counsel are based uponmatter dehors the record, they may not be reviewed on direct appeal (see People v Sabatino, 41 AD3d871 [2007]; People v Williams,41 AD3d 517, 518 [2007]). Insofar as we are able to review these claims, defensecounsel provided the defendant with meaningful representation (see People v Taylor, 1 NY3d 174,176 [2003]; People v Henry, 95 NY2d 563, 565-566 [2000]; People v Benevento,91 NY2d 708, 712 [1998]; see also People v Sabatino, 41 AD3d at 871).
The defendant's remaining contentions are without merit. Skelos, J.P., Fisher, Miller andEng, JJ., concur.