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The PEOPLE, etc., respondent, v. Andre KIRBY, appellant.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Collini, J.), rendered December 18, 2003, convicting him of robbery in the first degree (five counts) and robbery 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 lineup identification evidence.
ORDERED that the judgment is affirmed.
The hearing court properly declined to suppress the lineup identification evidence (see People v. Chipp, 75 N.Y.2d 327, 335, 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. Cain, 271 A.D.2d 542, 543, 708 N.Y.S.2d 413). While lineup participants should share the same general physical characteristics (see People v. Robert, 184 A.D.2d 597, 598, 585 N.Y.S.2d 445; People v. Burns, 138 A.D.2d 614, 615, 526 N.Y.S.2d 199), there is no requirement that a defendant in a lineup be surrounded by persons who are nearly identical in appearance (see People v. Green, 14 A.D.3d 578, 789 N.Y.S.2d 184; People v. Nieves, 183 A.D.2d 854, 856, 584 N.Y.S.2d 585). The police took reasonable steps to conceal the defendant's dreadlocks by requiring all of the lineup participants to wear matching baseball caps (see People v. Barnett, 277 A.D.2d 323, 324, 715 N.Y.S.2d 884; People v. Bradley, 268 A.D.2d 591, 592, 704 N.Y.S.2d 262; People v. Walker, 215 A.D.2d 606, 626 N.Y.S.2d 843; People v. Meatley, 162 A.D.2d 721, 557 N.Y.S.2d 421).
The defendant failed to preserve for appellate review his challenges to various remarks made by the prosecutor during summation, as he did not object to such remarks at the trial (see CPL 470.05[2]; People v. Nieves, 2 A.D.3d 539, 540, 767 N.Y.S.2d 913). In any event, the challenged remarks were within the bounds of fair response to the defense counsel's summation (see People v. Almonte, 23 A.D.3d 392, 394, 806 N.Y.S.2d 95; People v. Horne, 6 A.D.3d 549, 774 N.Y.S.2d 401).
The defendant's contention that the court should have instructed the jury that the incidents were separate and distinct, and that evidence of guilt as to one of the incidents could not be considered as evidence of guilt as to the other incidents, is similarly unpreserved for appellate review since the defendant never requested such a charge at trial (see People v. Robbins, 239 A.D.2d 526, 658 N.Y.S.2d 355; People v. Vega, 237 A.D.2d 394, 655 N.Y.S.2d 423; People v. Drake, 204 A.D.2d 479, 480, 611 N.Y.S.2d 906; People v. Lewis, 175 A.D.2d 885, 886, 573 N.Y.S.2d 733). In any event, in light of the overwhelming evidence of guilt with regard to each incident, the court's failure to so charge is harmless error (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787; People v. Vega, supra ).
Contrary to the defendant's contention, the procedure under which he was sentenced as a persistent felony offender did not violate his Sixth Amendment rights (see People v. Rivera, 5 N.Y.3d 61, 800 N.Y.S.2d 51, 833 N.E.2d 194, cert. denied 546 U.S. 984, 126 S.Ct. 564, 163 L.Ed.2d 473; People v. Rosen, 96 N.Y.2d 329, 728 N.Y.S.2d 407, 752 N.E.2d 844, cert. denied 534 U.S. 899, 122 S.Ct. 224, 151 L.Ed.2d 160; People v. Jordan, 21 A.D.3d 1039, 800 N.Y.S.2d 850; People v. Perry, 19 A.D.3d 619, 800 N.Y.S.2d 25).
The imposition of consecutive sentences was proper because the defendant committed separate acts, and none of the acts was a material element of another (see Penal Law § 70.25[2]; People v. Jackson, 19 A.D.3d 614, 615, 796 N.Y.S.2d 543). Moreover, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).
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Decided: November 21, 2006
Court: Supreme Court, Appellate Division, Second Department, New York.
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