PEOPLE v. BROWN (2008)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Starkey, J.), rendered March 20, 2006, as amended March 22, 2006, convicting him of scheme to defraud in the second degree, burglary in the second degree (three counts), burglary in the third degree, grand larceny in the fourth degree, petit larceny (two counts), attempted petit larceny, and criminal impersonation in the second degree (four counts), upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing (Chun, J.), of that branch of the defendant's omnibus motion which was to suppress identification testimony.

ORDERED that the judgment, as amended, is affirmed.

 Contrary to the defendant's contention, the hearing court did not err in failing to suppress lineup identification testimony.   While lineup participants should have the same general physical characteristics as those of the suspect, there is no requirement that a defendant in a lineup be surrounded by individuals nearly identical 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;  People v. Snyder, 304 A.D.2d 776, 777, 758 N.Y.S.2d 169;  People v. Pinckney, 220 A.D.2d 539, 632 N.Y.S.2d 203).   The photographs taken of the two lineups reflect that the fillers sufficiently resembled the defendant.   Moreover, any differences in weight and height were eliminated by having the participants in the lineup seated, holding a card with a number in front of them (see People v. Shaw, 251 A.D.2d 686, 677 N.Y.S.2d 796), and any differences in hair style were eliminated by having the participants wear identical baseball caps (see People v. Ortiz, 273 A.D.2d 482, 482-483, 710 N.Y.S.2d 254).   Further, the age disparities between the defendant and the fillers were not so apparent as to single out the defendant (see People v. Pinckney, 220 A.D.2d at 539, 632 N.Y.S.2d 203;  People v. Gonzalez, 173 A.D.2d 48, 56-57, 578 N.Y.S.2d 890;  People v. Middleton, 128 A.D.2d 554, 512 N.Y.S.2d 489).

The procedures followed by the police in the first lineup were proper (see People v. Celestin, 231 A.D.2d 736, 648 N.Y.S.2d 116;  People v. Morales, 134 A.D.2d 292, 520 N.Y.S.2d 618).

 Moreover, there is no need for an independent source hearing unless the identification procedures were unduly suggestive (see People v. Wilson, 5 N.Y.3d 778, 780, 802 N.Y.S.2d 112, 835 N.E.2d 1220).   In light of our determination, there is no merit to the defendant's contention that the People were required to demonstrate an independent source for the complainants' in-court identification.