Opinion
KA 99-1210
February 1, 2002.
Appeal from a judgment of Supreme Court, Monroe County (Mark, J.), entered September 30, 1999, convicting defendant after a jury trial of, inter alia, criminal sale of a controlled substance in the third degree.
EDWARD J. NOWAK, PUBLIC DEFENDER, ROCHESTER (TIMOTHY P. DONAHER OF COUNSEL), FOR DEFENDANT-APPELLANT.
HOWARD R. RELIN, DISTRICT ATTORNEY, ROCHESTER (KELLY CHRISTINE WOLFORD OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: GREEN, J.P., HAYES, SCUDDER, GORSKI, AND LAWTON, JJ.
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Defendant contends that the lineup procedure was unduly suggestive because his age and physical characteristics differed from those of the other five men in the lineup. We disagree. "There is no requirement * * * that a defendant in a lineup be surrounded by people nearly identical in appearance" ( People v. Chipp, 75 N.Y.2d 327, 336, cert denied 498 U.S. 833). The other five men resembled defendant, and the differences in their ages and physical characteristics were "not sufficient to create a substantial likelihood that the defendant would be singled out for identification" ( People v. Chipp, supra, at 336; see, People v. Anthony P., 277 A.D.2d 1024, lv denied 96 N.Y.2d 780; People v. Pastorius, 272 A.D.2d 944, 945, lv denied 95 N.Y.2d 907; People v. Smith, 234 A.D.2d 946, lv denied 89 N.Y.2d 1041). Contrary to defendant's further contentions, the verdict is not against the weight of the evidence ( see, People v. Bleakley, 69 N.Y.2d 490, 495), and the sentence is not unduly harsh or severe.