PEOPLE v. BALLINGER (2009)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (McKay, J.), rendered July 10, 2006, convicting him of burglary in the third degree and attempted burglary 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.

 Contrary to the defendant's contention, the record supports the hearing court's conclusion that the pretrial lineup was not unduly suggestive.  “There is no requirement that a defendant in a lineup be surrounded by persons who are nearly identical in appearance” (People v. Nieves, 183 A.D.2d 854, 856, 584 N.Y.S.2d 585;  see People v. Chipp, 75 N.Y.2d 327, 336, 553 N.Y.S.2d 72, 552 N.E.2d 608, cert. denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70;  People v. Herndon, 47 A.D.3d 837, 849 N.Y.S.2d 634).   Here, the lineup participants were similar to the defendant in appearance, and any minor differences in their physical characteristics or appearance were insufficient to create a substantial likelihood of misidentification (see People v. Herndon, 47 A.D.3d at 837-838, 849 N.Y.S.2d 634;  People v. Cheung, 255 A.D.2d 102, 683 N.Y.S.2d 470;  People v. Pinckney, 220 A.D.2d 539, 632 N.Y.S.2d 203, cert. denied 525 U.S. 841, 119 S.Ct. 104, 142 L.Ed.2d 83;  People v. Nieves, 183 A.D.2d at 856, 584 N.Y.S.2d 585).

 The defendant's contention that indictment No. 2478/05, later consolidated with indictment No. 8191/05, should have been dismissed is not reviewable since the judgment of conviction was based upon legally sufficient trial evidence (see People v. Hayes, 44 A.D.3d 683, 843 N.Y.S.2d 175;  People v. Ragland, 36 A.D.3d 943, 944, 829 N.Y.S.2d 189, cert. denied --- U.S. ----, 128 S.Ct. 1880, 170 L.Ed.2d 756;  People v. Nealy, 32 A.D.3d 400, 402, 819 N.Y.S.2d 106).   Furthermore, the hearing court properly found that a witness's identification of the defendant at a photographic array furnished probable cause for his arrest (see People v. Walton, 309 A.D.2d 956, 957, 766 N.Y.S.2d 93;  People v. Soberanis, 289 A.D.2d 343, 344, 734 N.Y.S.2d 70).

 To the extent that the defendant's claims of ineffective assistance of counsel are based upon matter dehors the record, they may not be reviewed on direct appeal (see People v. Sabatino, 41 A.D.3d 871, 840 N.Y.S.2d 802;  People v. Williams, 41 A.D.3d 517, 518, 835 N.Y.S.2d 906).   Insofar as we are able to review these claims, defense counsel provided the defendant with meaningful representation (see People v. Taylor, 1 N.Y.3d 174, 176, 770 N.Y.S.2d 711, 802 N.E.2d 1109;  People v. Henry, 95 N.Y.2d 563, 565-566, 721 N.Y.S.2d 577, 744 N.E.2d 112;  People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584;  see also People v. Sabatino, 41 A.D.3d at 871, 840 N.Y.S.2d 802).

The defendant's remaining contentions are without merit.