Opinion
March 18, 1991
Appeal from the Supreme Court, Queens County (Cooperman, J.).
Ordered that the judgment is affirmed.
At the hearing, proof was adduced that the defendant had initially robbed the complainant in or about 1986. Three years later the defendant entered the complainant's real estate office. The defendant told the complainant that he had a gun, took currency from her purse, and attempted to remove a ring from her finger. The complainant told the investigating officer the defendant's name and stated that he had robbed her three years earlier. The complainant viewed a photographic array of over 400 males and selected the defendant. She then identified the defendant at a lineup held shortly after his arrest several days later.
The findings of the hearing court are to be accorded great deference and should not be set aside on appeal unless clearly erroneous (see, People v Prochilo, 41 N.Y.2d 759). That the defendant was selected from a book containing photographs of over 400 males supports the hearing court's determination that the array was not unduly suggestive (see, People v Wiredo, 138 A.D.2d 652; People v Jerome, 111 A.D.2d 874).
There is no requirement that a defendant in a lineup be surrounded by individuals nearly identical in appearance. It is enough if there is a sufficient degree of resemblance between the fillers and the defendant (see, People v Allah, 158 A.D.2d 605). As there has been no showing that the defendant differed significantly from the fillers, the defendant's claim that the lineup identification should have been suppressed is without merit.
Finally, as there is no Federal or State constitutional right to counsel for an accused at a pre-indictment lineup (see, People v Hernandez, 70 N.Y.2d 833), it was not improper to hold a lineup without the defendant's counsel present. Thompson, J.P., Kunzeman, Eiber, Rosenblatt and Ritter, JJ., concur.