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People v. Foster

Appellate Division of the Supreme Court of New York, Second Department
May 8, 2000
272 A.D.2d 410 (N.Y. App. Div. 2000)

Opinion

Argued March 24, 2000.

May 8, 2000.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Bruno, J.), rendered March 30, 1998, convicting him of attempted murder in the second degree, robbery in the first degree, assault in the first degree, criminal possession of a weapon in the second degree, and grand larceny in the fourth 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.

Barry Gene Rhodes, Brooklyn, N.Y., for appellant.

Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Seth M. Lieberman, and Scott J. Splittgerber of counsel), for respondent.

WILLIAM C. THOMPSON, J.P., DANIEL F. LUCIANO, SANDRA J. FEUERSTEIN, ROBERT W. SCHMIDT, JJ.


DECISION ORDER

ORDERED that the judgment is affirmed.

The defendant's contention that the lineup procedure was unduly suggestive since he was the only participant with protruding or large eyes is without merit. There is no requirement that a defendant be surrounded by individuals identical to himself (see, People v. Chipp, 75 N.Y.2d 327; People v. Graham, 261 A.D.2d 413; People v. Gelzer, 224 A.D.2d 443; People v. Baptiste, 201 A.D.2d 659). All that is required is that the participants resemble each other sufficiently so as not to create a substantial likelihood that the defendant would be singled out for identification (see, People v. Chipp, supra). Here, the fillers were selected based on their similar characteristics to the defendant. All the fillers were of African-American descent, all were of approximately the same height and weight, and had similar complexions, facial hair, and clothing. Thus, even if the defendant was the only participant with large eyes, that fact did not render the lineup suggestive (see, People v. Bookman, 232 A.D.2d 498).

The defendant's remaining contentions are without merit.

THOMPSON, J.P., LUCIANO, FEUERSTEIN and SCHMIDT, JJ., concur.


Summaries of

People v. Foster

Appellate Division of the Supreme Court of New York, Second Department
May 8, 2000
272 A.D.2d 410 (N.Y. App. Div. 2000)
Case details for

People v. Foster

Case Details

Full title:THE PEOPLE, etc., respondent, v. MICHAEL FOSTER, appellant. (Ind. No…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: May 8, 2000

Citations

272 A.D.2d 410 (N.Y. App. Div. 2000)
707 N.Y.S.2d 229

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