Opinion
August 17, 1987
Appeal from the County Court, Suffolk County (Copertino, J.).
Ordered that the judgment is affirmed.
The defendant contends that the indictment did not adequately apprise him of the operative facts constituting the instant crime. The proper method for challenging the adequacy of an indictment is by a pretrial motion to dismiss (see, CPL 210.20, 210.25 Crim. Proc.). Inasmuch as the defendant did not raise this issue in his omnibus motion, it is not preserved for appellate review (see, People v. Iannone, 45 N.Y.2d 589, 600; People v. Smith, 113 A.D.2d 905, 907). In any event, the form of the indictment is proper in that it sufficiently sets forth a plain and concise statement of the facts supporting each element of the crimes charged (see, CPL 200.50 [a]).
We further find that, under all of the circumstances, the lineup procedure was not impermissibly suggestive (see, Stovall v. Denno, 388 U.S. 293; Simmons v. United States, 390 U.S. 377). In this regard, there is no evidence that the police influenced the complainant in selecting the defendant. Moreover, the fillers possessed physical characteristics reasonably similar to those of the defendant (see, People v. Burwell, 26 N.Y.2d 331; People v Lebron, 46 A.D.2d 776). Thus, there is no basis to suppress the complainant's visual identification of the defendant.
The defendant further contends that the complainant's voice identification of him was violative of due process. In this regard, voice identifications must be measured by the same due process considerations that apply to visual identifications (see, People v. Collins, 60 N.Y.2d 214). However, in the absence of some improper conduct by law enforcement officials there is no Due Process Clause violation (see, People v. Ramos, 52 A.D.2d 640, 644, affd 42 N.Y.2d 834; People v. Frawley, 131 A.D.2d 504). The evidence adduced at the pretrial hearing demonstrated that the voice identification was requested by the complainant without any prompting by the police and thus was not impermissibly suggestive.
We have examined the defendant's remaining contentions, including those raised in his pro se brief, and conclude that they are unpreserved for appellate review or without merit. Mangano, J.P., Bracken, Kunzeman and Harwood, JJ., concur.