PEOPLE v. SHAW

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

The PEOPLE, etc., Respondent, v. Daytoine SHAW, Appellant.

Decided: June 29, 1998

Before PIZZUTO, J.P., and SANTUCCI, ALTMAN and LUCIANO, JJ. M. Sue Wycoff, New York City (Paul Wiener, of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn (Roseann B. MacKechnie, Caroline R. Donhauser and Jonathan M. Sperling, of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Brill, J.), rendered March 19, 1996, convicting him of murder 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 testimony.

ORDERED that the judgment is affirmed.

 Contrary to the defendant's contention, the hearing court did not err in failing to suppress the 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. Rotunno, 159 A.D.2d 601, 552 N.Y.S.2d 445;  People v. Diaz, 138 A.D.2d 728, 526 N.Y.S.2d 540;  People v. Mattocks, 133 A.D.2d 89, 518 N.Y.S.2d 436;  see also, 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).  Since the lineup participants in this case were similar to the defendant in age, skin tone, and attire, their weight and any minor variations in their appearance did not render the lineup impermissibly suggestive or conducive to irreparable mistaken identification (see, People v. Folk, 233 A.D.2d 462, 650 N.Y.S.2d 272).  Moreover, any significant discrepancies 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. Joseph, 191 A.D.2d 646, 595 N.Y.S.2d 116;  People v. Wiley, 137 A.D.2d 735, 524 N.Y.S.2d 821;  People v. Herrera, 219 A.D.2d 511, 631 N.Y.S.2d 660).

The defendant's remaining contentions are unpreserved for appellate review and, in any event, without merit.

MEMORANDUM BY THE COURT.

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