People v. Tyler , 605 N.Y.S.2d 65 ( 1993 )

Judgment, Supreme Court, New York County (Richard Failla, J., at suppression hearing; Robert Haft, J., at plea and sentencing), rendered May 30, 1990, convicting defendant, upon his plea of guilty, of attempted robbery in the first degree, and sentencing him, as a second violent felony offender, to a term of 4 to 8 years, unanimously affirmed.

There is no requirement that a defendant in a lineup be surrounded by people nearly identical in appearance (People v Chipp, 75 NY2d 327, 336, cert denied 498 US 833). Based on the record and our examination of the photographs of the lineups, we find that the hearing court properly concluded that under the totality of the circumstances the pretrial lineups conducted were not unduly suggestive. The witnesses were not given any information prior to the viewing that might have led them to focus on a particular person. While the stand-ins involved in both lineups did not match exactly defendant’s height and weight, they were all seated, rendering less noticeable any differences in build. Defendant was not the only member of the lineup with a receding hairline, nor did his attire differ significantly from the others so as to call attention to him as a suspect. Concur—Carro, J. P., Ellerin, Kupferman and Rubin, JJ.