PEOPLE v. BOONE (1998)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Lott, J.), rendered November 26, 1996, convicting him of attempted murder in the second degree, attempted robbery in the first degree, assault in the first degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress identification testimony.

ORDERED that the judgment is affirmed.

The defendant contends that he was identified in an unduly-suggestive identification procedure in which only he exhibited a prominent facial scar.   We disagree.   While it is true that the defendant alone had a facial scar, from the testimony and photographic evidence concerning the lineup, it appears that the defendant was positioned in such a manner that his scar was not visible and that it played no part in the resulting identification (see, People v. Thomas, 223 A.D.2d 610, 637 N.Y.S.2d 174;  People v. Rosado, 222 A.D.2d 617, 635 N.Y.S.2d 286;  People v. Neptune, 193 A.D.2d 703, 598 N.Y.S.2d 47;  People v. Williams, 118 A.D.2d 610, 499 N.Y.S.2d 453).   We further note that the defendant was also identified at trial by two other witnesses, neither of whom observed the lineup (see, People v. Medina, 208 A.D.2d 771, 617 N.Y.S.2d 491;  People v. Jackson, 167 A.D.2d 420, 561 N.Y.S.2d 828).

We have reviewed the defendant's remaining contentions and find them to be without merit.

MEMORANDUM BY THE COURT.