Opinion
Submitted November 16, 2000.
December 12, 2000.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Friedman, J.), rendered December 1, 1998, convicting him of rape in the first degree (two counts), robbery in the first degree (nineteen counts), endangering the welfare of a child (six counts), attempted robbery in the first degree, and robbery 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.
Lynn W. L. Fahey, New York, N.Y. (Barry Stendig of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Phyllis Mintz of counsel), for respondent.
Before: LAWRENCE J. BRACKEN, J.P., MYRIAM J. ALTMAN, WILLIAM D. FRIEDMANN GABRIEL M. KRAUSMAN, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the hearing court properly concluded that the lineup in which he was identified by 11 of his victims was not impermissibly suggestive. There is no requirement that the participants in a lineup be nearly identical in appearance to the defendant (see, People v. Chipp, 75 N.Y.2d 327, 336, cert denied 498 U.S. 833). The fillers sufficiently resembled the defendant so that he was not likely to be singled out for identification (see, People v. Miranda, 265 A.D.2d 507). Moreover, a five-man lineup is not constitutionally impermissible (see, People v. Norris, 122 A.D.2d 82, 84).
The trial court properly refused to give a missing witness charge in connection with the absence of a 13-year-old girl who had been robbed by the defendant, since her testimony would have been cumulative to the testimony of her aunt (see, People v. Gonzalez, 68 N.Y.2d 424, 427-428; People v. Buckler, 39 N.Y.2d 895; People v. Lucas, 177 A.D.2d 599).
The defendant's remaining contention is unpreserved for appellate review (see, People v. Bynum, 70 N.Y.2d 858; People v. Udzinski, 146 A.D.2d 245; CPL 470.05), and, in any event, is without merit. The defendant failed to prove by a preponderance of the evidence that his gunpoint robbery of three sisters was actually committed with a toy weapon (see, People v. Gilliard, 72 N.Y.2d 877, 878; see also, People v. Maldonado, 175 A.D.2d 698; Penal Law § 160.15).