The People, etc., respondent, v. Shamei Brown, appellant. (2011)

Submitted—October 21, 2011

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Westchester County (R. Bellantoni, J.), rendered January 26, 2007, convicting him of murder in the second degree, attempted murder in the second degree, assault in the first degree, and criminal possession of a weapon in the second 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 evidence.

ORDERED that the judgment is affirmed.

The hearing court properly denied that branch of the defendant's omnibus motion which was to suppress identification evidence.   Successive photo arrays are not per se impermissibly suggestive (see People v. Dunlap, 9 AD3d 434, 435;  People v. Galletti, 239 A.D.2d 598, 599;  People v. Daniels, 202 A.D.2d 987, 987;  People v. Thomas, 133 A.D.2d 867, 868;  People v. Sheirod, 124 A.D.2d 14, 18).   Further, the participants in the photo array were sufficiently similar to the defendant in appearance so that there was little likelihood that the defendant would be singled out for identification based on particular characteristics (see People v. Ragunauth, 24 AD3d 472, 472;  People v. Wright, 297 A.D.2d 391, 391;  People v. Williams, 289 A.D.2d 270, 270–271).   There is also 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, cert denied 498 U.S. 833;  People v. Granger, 18 AD3d 774, 774;  People v. Green, 14 AD3d 578, 578).   Here, the alleged variations in appearance between the fillers and the defendant were not so substantial as to render the lineup impermissibly suggestive (see People v. Smith, 299 A.D.2d 566, 566–567;  People v. Blue, 267 A.D.2d 317, 318;  People v. Bryan, 228 A.D.2d 244, 244;  People v. Berry, 201 A.D.2d 489, 489–490;  People v. Simmons, 158 A.D.2d 950, 950;  cf.  People v. Carolina, 184 A.D.2d 520, 520–521;  People v. Moore, 143 A.D.2d 1056, 1056).

The defendant's contentions that his conviction was not supported by legally sufficient evidence and, in particular, that the People's theory of the case was improperly supported only by hearsay evidence, are unpreserved for appellate review (see People v. Hawkins, 11 NY3d 484, 491–492).   In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt of the crimes charged.   Moreover, upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 NY3d 633).

MASTRO, J.P., DILLON, SGROI and MILLER, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court