PEOPLE v. POINTER

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

The PEOPLE, etc., Respondent, v. Kaseem POINTER, Appellant.

Decided: August 17, 1998

O'BRIEN, J.P., SANTUCCI, KRAUSMAN and GOLDSTEIN, JJ. Ellen E. Edwards, Brooklyn, N.Y., for appellant. Appellant, pro se. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Roseann B. MacKechnie, Michael Gore, Lawrence P. Oh, and Lori Glachman of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Steinhart, J.), rendered August 8, 1995, convicting him of attempted murder in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 It is well settled that a defendant in a lineup need not be surrounded 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. Gelzer, 224 A.D.2d 443, 637 N.Y.S.2d 764;  People v. Baptiste, 201 A.D.2d 659, 608 N.Y.S.2d 266).   To the contrary, the fillers in a lineup need only be reasonably similar to the defendant in appearance (see, People v. Gelzer, supra;  People v. Pinckney, 220 A.D.2d 539, 632 N.Y.S.2d 203).   Skin tone is only one of the factors to be considered in deciding “reasonable similarity” (People v. Miller, 199 A.D.2d 422, 423, 605 N.Y.S.2d 342) and differences in skin tone alone will not render a lineup unduly suggestive (see, People v. Miller, supra;  People v. Chipp, supra;  People v. Henderson, 170 A.D.2d 532, 566 N.Y.S.2d 92).   As the defendant failed to demonstrate that there was a substantial likelihood of misidentification, there is no basis to disturb the hearing court's determination that the lineup procedure was not tainted by suggestiveness (see, People v. Singleton, 222 A.D.2d 719, 636 N.Y.S.2d 796;  People v. Jacobi, 159 A.D.2d 308, 552 N.Y.S.2d 587).

Viewing the evidence in the light most favorable to the prosecution (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 sentence imposed was neither harsh nor excessive (see, People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

The defendant's remaining contentions, including those raised in his supplemental pro se brief, are without merit.

MEMORANDUM BY THE COURT.

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