People v McFadden
2007 NY Slip Op 00157 [36 AD3d 631]
January 9, 2007
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, March 14, 2007


The People of the State of New York, Respondent,
v
David McFadden, Appellant.

[*1] Lynn W. L. Fahey, New York, N.Y. (Erica Horwitz of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and William C. Milaccio of counsel; Maria Tihin on the brief), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Eng, J.), rendered July 19, 2004, convicting him of robbery in the first degree, burglary in the first degree, and petit larceny, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Aloise, J.), of that branch of the defendant's omnibus motion which was to suppress lineup identification evidence.

Ordered that the judgment is affirmed.

The defendant's contention that the lineup was unduly suggestive because the fillers differed in age, skin tone, and facial hair is unpreserved for appellate review (see CPL 470.05 [2]) and in any event, is without merit (see People v Hylton, 2 AD3d 459 [2003]). The lineup consisted of individuals who were reasonably similar in appearance to the defendant, and there is no requirement that the defendant be surrounded by individuals whose physical characteristics are nearly identical to his (see People v Sumpter, 27 AD3d 590 [2006], lv denied 7 NY3d 795 [2006]; People v Green, 14 AD3d 578 [2005]). Miller, J.P., Rivera, Skelos and Lunn, JJ., concur.