PEOPLE v. MERISIER (1999)

Appeal by the defendant from a judgment of the County Court, Suffolk County (Cacciabaudo, J.), rendered November 25, 1996, convicting him of robbery 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.

 Contrary to the defendant's contention, the record supports the hearing court's conclusion that the pretrial lineup was not impermissibly suggestive.   There is no requirement that a defendant in a lineup be accompanied by individuals nearly identical 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. Rotunno, 159 A.D.2d 601, 552 N.Y.S.2d 445).   In this case, the other individuals in the lineup were sufficiently similar in appearance to the defendant so that no characteristic or visual clue would have oriented the viewer toward the defendant as the perpetrator of the crimes charged (see, People v. Lundquist, 151 A.D.2d 505, 506, 542 N.Y.S.2d 295).

 The defendant's contention that the evidence was legally insufficient to establish his guilt of robbery in the first degree is unpreserved for appellate review (see, CPL 470.05[2] ).  In any event, viewing the evidence in the light most favorable to the People (see, People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.   Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15[5] ).

The defendant's remaining contentions are without merit.

MEMORANDUM BY THE COURT.