People v Eric Richards

People v Richards 2003 NY Slip Op 20043 [2 AD3d 883] December 29, 2003 Appellate Division, Second Department As corrected through Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 25, 2004

The People of the State of New York, Respondent,
v
Eric Richards, Appellant.

—

Appeal by the defendant from a judgment of the Supreme Court, Queens County (McKay, J.), rendered March 11, 2002, convicting him of robbery in the first degree and robbery in the second degree (two counts), upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Kron, J.), of that branch of the defendant's omnibus motion which was to suppress identification testimony.

Ordered that the judgment is affirmed.

Contrary to the defendant's contention, the hearing court properly denied that branch of his omnibus motion which was to suppress identification testimony. While lineup participants should have the same general physical characteristics as those of the suspect, there is no requirement that a defendant in a lineup be surrounded by individuals nearly identical in appearance (see People v Chipp, 75 NY2d 327, 336 [1990], cert denied 498 US 833 [1990]). Any minor variations between the weight, age, or features of the participants and those of the defendant in this case did not render the lineup impermissibly suggestive or conducive to irreparable mistaken identification (see People v Shaw, 251 AD2d 686 [1998]). Any significant discrepancies in height were eliminated since the participants in the lineup were seated (see People v Bolt, 295 AD2d 357, 358 [2002]).

The defendant's remaining contentions are without merit. Florio, J.P., Smith, Luciano and Rivera, JJ., concur.