PEOPLE v. RIVERA (1999)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Aiello, J.), rendered September 30, 1996, convicting him of murder in the second degree and criminal possession of a weapon in the second 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 claims that the lineup viewed by two prosecution witnesses one month after the shooting was unduly suggestive because the defendant and one filler were the only people in the lineup wearing the clothes described by the witnesses as having been worn by the shooter, i.e., a white T-shirt and jeans.   The hearing court properly denied the suppression motion since the defendant's clothing was not so distinctive as to draw attention to him, and the appearance of the fillers was similar to the defendant in terms of skin tone and facial hair, and all of the participants were wearing white T-shirts (see, People v. Allen, 257 A.D.2d 397, 685 N.Y.S.2d 171;  People v. Caba, 255 A.D.2d 232, 682 N.Y.S.2d 6).   Moreover, three weeks prior to the lineup, the witnesses had selected a photograph of the defendant's face from an array of six photographs of similar-looking men, thus revealing that the witnesses concentrated on the shooter's face rather than his commonplace attire (see, People v. Santos, 250 A.D.2d 413, 673 N.Y.S.2d 94;  People v. Tinnen, 238 A.D.2d 615, 657 N.Y.S.2d 73).

The defendant's remaining contentions are unpreserved for appellate review and, in any event, without merit.

MEMORANDUM BY THE COURT.