PEOPLE v. MEYER (1998)

Judgment, Supreme Court, New York County (Carol Berkman, J., at hearing;  Jerome Hornblass, J., at plea and sentence), rendered May 20, 1996, convicting defendant, of robbery in the first degree, and sentencing him to a term of 2 to 6 years, unanimously affirmed.

 Defendant's motion to suppress identification testimony was properly denied.   A review of the lineup photograph shows individuals who were similar, although not identical, in age and appearance to defendant.   Since there was no substantial likelihood that the defendant would be singled out for identification (see, People v. Stephens, 248 A.D.2d 214, 670 N.Y.S.2d 185, lv. denied 92 N.Y.2d 861, 677 N.Y.S.2d 92, 699 N.E.2d 452), the lineup was not unduly suggestive.   Defendant's claim that he was the only lineup participant meeting the complainant's description of the robber is unpreserved and unreviewable, because this description is not part of the hearing record and defendant never moved to reopen the hearing.

Furthermore, the sentencing court did not depart from its original promise to consider a recommendation for early release to the parole board if defendant showed sufficient rehabilitation.   We take judicial notice of defendant's post-conviction application under CPL article 440 where it appears that the court furnished such a recommendation, which the board considered and rejected.

MEMORANDUM DECISION.