Opinion
February 21, 1995
Appeal from the County Court, Nassau County (Jonas, J.).
Ordered that the judgment and the amended judgment are affirmed.
Upon viewing the totality of the circumstances surrounding the pretrial identification of the defendant (see, People v. Logan, 25 N.Y.2d 184, 191, cert denied 396 U.S. 1020), there is no basis in the record to disturb the determination of the hearing court (see, People v. Ballard, 140 A.D.2d 529). The mere fact that the two complaining witnesses viewed and selected the defendant's photograph from an array and then only three days later selected the defendant in a lineup is not a ground for concluding that the procedure was so conducive to the possibility of irreparable misidentification as to require suppression (see, People v Denny, 177 A.D.2d 589). Further, there is no evidence in the record to support the defendant's contention that the identification procedures were compromised by the fact that the defendant's position at both the lineup and the photo array was the same.
The defendant's claim that the identification procedures were faulty because the fillers of the lineup were starkly different is unavailing, since there is no requirement that a defendant in a lineup be accompanied by individuals nearly identical in physical appearance (see, People v. Brito, 179 A.D.2d 666). The participants of the lineup were reasonably similar to the defendant (see, People v. Brito, supra).
The record establishes that the defendant has two prior judgments of conviction, one for robbery in the second degree, a class C violent felony offense (Penal Law § 70.02 [b]) and the other for assault in the second degree, a class D violent felony offense (Penal Law § 70.02 [c]). Thus, contrary to the defendant's contention, he was properly adjudicated to be a persistent violent felony offender upon the instant conviction of robbery in the second degree (see, Penal Law § 70.08; § 70.04 [1]; § 70.02 [1]).
The defendant's remaining contention is without merit. Bracken, J.P., Balletta, Copertino and Hart, JJ., concur.