Opinion
October 16, 1995
Appeal from the Supreme Court, Queens County (Demakos, J.).
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 N.Y.2d 327, 336, cert denied 498 U.S. 833). The hearing court, which saw and heard the witnesses, found that the photographic array was not suggestive ( see, People v. Prochilo, 41 N.Y.2d 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 A.D.2d 597).
The defendant's remaining contentions are unpreserved for appellate review or without merit. Thompson, J.P., Altman, Goldstein and Florio, JJ., concur.