Opinion
November 13, 1989
Appeal from the Supreme Court, Queens County (Linakis, J.).
Ordered that the judgment is modified, as a matter of discretion in the interest of justice, by deleting the provision providing that the term of imprisonment imposed on the conviction for burglary in the first degree is to run consecutively to the terms of imprisonment imposed on the other counts, and substituting therefor a provision directing that that term of imprisonment shall run concurrently to the terms imposed on the other counts; as so modified, the judgment is affirmed.
The defendant contends that the pretrial lineup at which he was identified by one of the complaining witnesses was unduly suggestive because only three of the participants had hazel eyes and because there was some discrepancy in height. We disagree. An examination of the lineup photographs indicates that all of the participants were similar in appearance to the defendant, including age, skin color and build. Indeed, prior to the lineup the defendant's own counsel commented that one of the participants resembled the defendant more than the defendant's own brother. Further, any discrepancy in height was minimized by the fact that each of the participants approached the viewing window individually and then returned to his seat. There is no requirement that a defendant in a lineup must be surrounded by individuals nearly identical in appearance (see, People v Mattocks, 133 A.D.2d 89; People v Rodriguez, 124 A.D.2d 611, 612), and in the case at bar, there did not exist a substantial likelihood of misidentification (see, Neil v Biggers, 409 U.S. 188). The defendant's claim that the detective who conducted the lineup engaged in impropriety or prompted the witness in any way is not supported by the evidence.
We find that the defendant's sentence was excessive to the extent indicted.
We have examined the defendant's remaining contentions and find them to be without merit. Mangano, J.P., Thompson, Spatt and Rosenblatt, JJ., concur.