PEOPLE v. GREEN (2005)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Mangano, J.), rendered March 12, 2002, convicting him of robbery in the first degree and robbery 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's contention that the prosecution failed to adduce legally sufficient proof of his identity as a robber is unpreserved for appellate review (see CPL 470.05[2];  People v. Gray, 86 N.Y.2d 10, 19-21, 629 N.Y.S.2d 173, 652 N.E.2d 919;  People v. Adames, 308 A.D.2d 454, 764 N.Y.S.2d 200).   In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that the identification evidence was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.   Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15[5] ).

 The hearing court properly declined to suppress evidence of the lineup at which the complainant identified the defendant.   The defendant's contention that the lineup procedure was unduly suggestive because the fill-ins did not look like him, and that any in-court identification was thereby tainted, is without merit.  “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. Mason, 138 A.D.2d 411, 412, 525 N.Y.S.2d 694).   The participants in the lineup were similar to the defendant in appearance, and any minor differences between them were insufficient to create a substantial likelihood of misidentification (see People v. Nieves, supra;  People v. Ramos, 170 A.D.2d 186, 565 N.Y.S.2d 87;  People v. Mason, supra).   In addition, the lineup identification was not contaminated by a police officer's remark to the complainant that a suspect was in custody.  “When a complainant is brought to a police station to view a lineup, it is implicit that the lineup will contain at least one suspect, otherwise there would be no point whatever in conducting the lineup” (People v. Ramos, supra at 186, 565 N.Y.S.2d 87).

The defendant's arrest was supported by probable cause (see People v. Baptiste, 201 A.D.2d 659, 659-660, 608 N.Y.S.2d 266;  People v. Higgins, 178 A.D.2d 199, 577 N.Y.S.2d 269;  People v. Green, 157 A.D.2d 745, 550 N.Y.S.2d 41;  People v. Palacio, 121 A.D.2d 282, 283, 503 N.Y.S.2d 56;  People v. Rhodes, 111 A.D.2d 194, 488 N.Y.S.2d 821;  People v. Nelson, 79 A.D.2d 171, 173-174, 436 N.Y.S.2d 505, cert. denied sub nom. Usher v. New York, 454 U.S. 869, 102 S.Ct. 336, 70 L.Ed.2d 172).