PEOPLE v. VILLACRESES (2004)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kron, J.), rendered December 19, 2003, convicting him of robbery in the first degree, robbery in the second degree, and unauthorized use of a vehicle 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.

 There is no merit to the defendant's contention that a lineup was unduly suggestive.   There is no requirement that a defendant who participates in a lineup be accompanied by individuals who are nearly identical to him (see People v. Chipp, 75 N.Y.2d 327, 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).   The defendant's contention that there was a height difference between him and the other lineup participants is unpreserved for appellate review (see CPL 470.50[2] ), and in any event, photographs of the lineup introduced into evidence at the hearing confirm that the lineup participants were seated so as to minimize any height disparities (see People v. Huggins, 292 A.D.2d 543, 739 N.Y.S.2d 733).   The photographs also demonstrate that the fillers sufficiently resembled the defendant (see People v. Snyder, 304 A.D.2d 776, 758 N.Y.S.2d 169).   Skin tone is only one of the factors to be considered in deciding “reasonable similarity” (People v. Miller, 199 A.D.2d 422, 423, 605 N.Y.S.2d 342), and differences in skin tone alone will not render a lineup unduly suggestive (see People v. Pointer, 253 A.D.2d 500, 677 N.Y.S.2d 582).

 The defendant further contends that a new trial is warranted because the People failed to turnover Rosario material (see People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881, cert. denied 368 U.S. 866, 82 S.Ct. 117, 7 L.Ed.2d 64) consisting of a police officer's handwritten notes regarding an eyewitness's initial description of the perpetrator.   This claim is also unpreserved for appellate review.   In any event, there is no reasonable possibility that the non-disclosure materially contributed to the result of the trial (see CPL 240.75).   The officer testified that he transcribed the contents of these notes onto a so-called DD-5 report (see People v. Anjorie, 300 A.D.2d 500, 752 N.Y.S.2d 371), and he did not testify regarding the exact description given to him by the eyewitness.   Also, another police officer, the first to arrive at the crime scene, wrote down a description of the perpetrator based on the statements of the eyewitness, and during his summation, the defendant emphasized the differences between that description and the description provided by the eyewitness at trial.

To the extent that the defendant's claims of ineffective assistance of counsel involve matter dehors the record, they may not be reviewed on direct appeal (see People v. Aguirre, 304 A.D.2d 771, 757 N.Y.S.2d 776;  People v. O'Connor, 291 A.D.2d 573, 737 N.Y.S.2d 878;  People v. Weekes, 289 A.D.2d 599, 735 N.Y.S.2d 815;  People v. Wells, 288 A.D.2d 408, 733 N.Y.S.2d 634).   Insofar as we are able to review the defendant's claim of ineffective assistance of counsel, the defense counsel provided meaningful representation (see People v. Benevento, 91 N.Y.2d 708, 714, 674 N.Y.S.2d 629, 697 N.E.2d 584;  People v. Satterfield, 66 N.Y.2d 796, 798-799, 497 N.Y.S.2d 903, 488 N.E.2d 834;  People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).