PEOPLE v. DAVIS (2006)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Juviler, J.), rendered October 25, 1993, convicting him of attempted murder in the second degree, robbery in the first degree (two counts), and reckless endangerment in the first 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.

 While lineup participants should have the same general physical characteristics as those of the suspect, a defendant need not be surrounded by individuals nearly identical to him in appearance (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).   Since the lineup participants resembled the defendant in weight, attire, hair color, and skin tone, minor variations in age did not render the lineup impermissibly suggestive or conducive to mistaken identification (see People v. Jackson, 98 N.Y.2d 555, 559, 750 N.Y.S.2d 561, 780 N.E.2d 162;  People v. Blue, 267 A.D.2d 317, 318, 699 N.Y.S.2d 879).

 Moreover, contrary to the defendant's contention, the fact that the sentence imposed after trial was greater than the sentence offered during plea negotiations is no indication that the defendant was punished for asserting his right to proceed to trial (see People v. Bellilli, 270 A.D.2d 355, 704 N.Y.S.2d 616;  People v. Lam, 226 A.D.2d 554, 555, 641 N.Y.S.2d 97;  People v. Goolsby, 213 A.D.2d 722, 723, 624 N.Y.S.2d 955).   It is to be anticipated that sentences imposed after trial may be more severe than those proposed in connection with a plea (see People v. Pena, 50 N.Y.2d 400, 412, 429 N.Y.S.2d 410, 406 N.E.2d 1347, cert. denied 449 U.S. 1087, 101 S.Ct. 878, 66 L.Ed.2d 814;  People v. Bellilli, supra;  People v. Velez, 222 A.D.2d 539, 541, 634 N.Y.S.2d 758).   Moreover, the sentence imposed was not excessive (see People v. Felix, 58 N.Y.2d 156, 460 N.Y.S.2d 1, 446 N.E.2d 757;  People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

The defendant's contention regarding the denial of his motion for a mistrial and the admissibility of a witness's testimony about his own sobriety are without merit, and his remaining contentions are unpreserved for appellate review, and, in any event, without merit.