People v. Guzman , 632 N.Y.S.2d 594 ( 1995 )

—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Demakos, J.), rendered November 16, 1993, convicting him of murder in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress identification testimony.

Ordered that the judgment is affirmed.

The hearing court properly declined to suppress the proposed identification testimony of the eyewitness. Contrary to the defendant’s contention, the photographic array was not suggestive and did not draw the viewer’s attention to the defendant’s photograph. There is no requirement that a defendant be surrounded by individuals nearly identical to him in appearance during identification procedures (see, People v Chipp, 75 NY2d 327, 336, cert denied 498 US 833). The hearing court, which saw and heard the witnesses, found that the photographic array was not suggestive (see, People v Prochilo, 41 NY2d 759), and its determination should not be disturbed unless unsupported by the record. Although it would have been better to have taken the defendant’s picture against a light background, it cannot be said that this difference tainted the photographic array (see, People v Robert, 184 AD2d 597).

The defendant’s remaining contentions are unpreserved for appellate review or without merit. Thompson, J. P., Altman, Goldstein and Florio, JJ., concur.