PEOPLE v. TORRES

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Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., Respondent, v. Elisha TORRES, appellant.

Decided: October 14, 2003

NANCY E. SMITH, J.P., SANDRA L. TOWNES, BARRY A. COZIER and WILLIAM F. MASTRO, JJ. Lynn W.L. Fahey, New York, N.Y. (Sarah J. Berger of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Traci R. Wilkerson of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Rosengarten, J.), rendered November 13, 2000, convicting him of robbery in the first degree (two counts), robbery in the second degree, criminal possession of a weapon in the second degree (two counts), criminal possession of a weapon in the third degree (two counts), criminal possession of stolen property in the fifth degree (two counts), and endangering the welfare of a child, 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 contentions, the lineup was not unduly suggestive.   The fillers were sufficiently similar to the defendant in appearance such that there was no substantial likelihood that he would be singled out for identification (see People v. Perkins, 13 A.D.2d 998, 216 N.Y.S.2d 762;  People v. Poey, 260 A.D.2d 411, 689 N.Y.S.2d 509). The fact that the defendant was the only one in the lineup wearing a white shirt was not so unduly suggestive of his identity as to create a substantial likelihood of irreparable misidentification because there is no evidence that the defendant's clothing figured prominently in the complainant's description of the perpetrator (see People v. Saunders, 306 A.D.2d 502, 761 N.Y.S.2d 315;  People v. Tinnen, 238 A.D.2d 615, 657 N.Y.S.2d 73).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 83, 455 N.Y.S.2d 675).

The defendant's remaining contention is without merit.

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