PEOPLE v. WALLACE (1999)

Appeal by the defendant from a judgment of the County Court, Suffolk County (Cacciabaudo, J.), rendered August 20, 1996, convicting him of burglary 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.

 The appellant contends that the hearing court erred in denying that branch of his omnibus motion which was to suppress identification testimony because the pretrial lineup viewed by two of the complainants was impermissibly suggestive.   However, considering the totality of the circumstances surrounding the lineup identification (see, People v. Harris, 187 A.D.2d 530, 589 N.Y.S.2d 598;  People v. Lundquist, 151 A.D.2d 505, 542 N.Y.S.2d 295), we find that the hearing court properly denied suppression.   Although the fillers used in a lineup should be reasonably similar in appearance to the appellant, there is no requirement that a defendant in a lineup be accompanied by individuals who are nearly identical to him in appearance (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;  People v. Merisier, 258 A.D.2d 535, 685 N.Y.S.2d 270;  People v. Cintron, 226 A.D.2d 390, 640 N.Y.S.2d 242;  People v. Gelzer, 224 A.D.2d 443, 637 N.Y.S.2d 764).   Here, the lineup participants were not noticeably different in age or skin tone, and had similar hairstyles and mustaches.   Moreover, all of the participants were seated, to minimize disparities in weight (see, People v. Joseph, 191 A.D.2d 646, 595 N.Y.S.2d 116;  People v. Harris, supra), and the appellant was not the only participant wearing a dark sweatshirt.

 Furthermore, the County Court did not improvidently exercise its discretion in granting the People's motion to consolidate the appellant's case with that of his codefendant (see, CPL 200.40[2] ).  The proof against both defendants was supplied by the same evidence, and the defenses they asserted at trial did not irreconcilably conflict (see, People v. Mahboubian, 74 N.Y.2d 174, 544 N.Y.S.2d 769, 543 N.E.2d 34;  People v. Jackson, 249 A.D.2d 564, 671 N.Y.S.2d 329;  People v. Pratt, 201 A.D.2d 745, 608 N.Y.S.2d 317).   In addition, the quantity and quality of the evidence presented against the two defendants was not so substantially different that severance was necessary in order to preserve the appellant's right to a fair trial (see, People v. Irby, 162 A.D.2d 714, 557 N.Y.S.2d 416;  People v. Moss, 149 A.D.2d 740, 540 N.Y.S.2d 705).

MEMORANDUM BY THE COURT.