PEOPLE v. MILLER (2006)

Judgment, Supreme Court, Bronx County (Caesar D. Cirigliano, J.), rendered June 4, 2002, convicting defendant, after a jury trial, of attempted assault in the first degree, criminal possession of a weapon in the second degree, reckless endangerment in the first degree and criminal possession of stolen property in the fifth degree, and sentencing him to an aggregate term of 12 years, unanimously affirmed.

The court properly denied defendant's suppression motion.   The lineup photograph reveals that the participants were sufficiently similar to defendant in appearance so that there was no danger that he would be singled out for identification (see People v. Chipp, 75 N.Y.2d 327, 336, 553 N.Y.S.2d 72, 552 N.E.2d 608 [1990], cert. denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70 [1990] ).   At the time of the lineup, defendant wore a different hairstyle from the type mentioned in the witness's description of the perpetrator, and there is no reason to believe that defendant's hairstyle, or anything else, drew the witness's attention to him at the lineup.   Defendant's arguments concerning the photographic identification procedures that occurred prior to the lineup are unpreserved and we decline to review them in the interest of justice.   Were we to review these claims, we would find them to be without merit.

In its supplemental instructions, the court adequately complied with defendant's request regarding the issue of identification.