PEOPLE v. McFADDEN (2007)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Eng, J.), rendered July 19, 2004, convicting him of robbery in the first degree, burglary in the first degree, and petit larceny, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing (Aloise, J.), of that branch of the defendant's omnibus which was to suppress lineup identification evidence.

ORDERED that the judgment is affirmed.

 The defendant's contention that the lineup was unduly suggestive because the fillers differed in age, skin tone, and facial hair is unpreserved for appellate review (see CPL 470.05[2] ) and in any event, is without merit (see People v. Hylton, 2 A.D.3d 459, 767 N.Y.S.2d 825).   The lineup consisted of individuals who were reasonably similar in appearance to the defendant, and there is no requirement that the defendant be surrounded by individuals whose physical characteristics are nearly identical to his (see People v. Sumpter, 27 A.D.3d 590, 810 N.Y.S.2d 374, lv. denied 7 N.Y.3d 795, 821 N.Y.S.2d 825, 854 N.E.2d 1289;  People v. Green, 14 A.D.3d 578, 789 N.Y.S.2d 184).